UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 


SCHOOL  OF  LAW 
LIBRARY 


THE  GENERAL  PRINCIPLES 


01'  TUB 


LAW  OF  EVIDENCE 


IN   THEIR   APPLICATION  TO 


THE  TRIAL  OF  CRIMINAL  CASES 

AT  COMMON  LAW 


AND 


UNDER  THE  CRIMINAL  CODES 


OF   THE   SEVERAL  STATES. 


IN   ONE   VOLUME. 


BY  FRANK  S.  RICE, 

Counselor  at  Law, 
Author  of  Evidence  in  Civil  Cases,  2  Vols. 


THE   LAWYERS'  CO-OPERATIVE   PUBLISHING   CO. 

ROCHESTER,  N.  Y. 

1893. 


Entered  according  to  Act  of  Congress,  in  the  year  eighteen  hundred  and  ninety -three,  by 

THE  LAWYERS'  CO-OPERATIVE  PUBLISHING  CO., 

In  the  Office  of  the  Librarian  of  Congress,  at  Washington,  D.  C. 


T 

K.3ol8e.v 
'8:93 


E.  K.  ANDREWS,  P1UNTER,  ROCHESTER.  N.  T. 


PREFACE. 

In  concluding  the  examination  of  a  subject  which  has  engrossed 
my  attention  for  many  years,  a  few  explanatory  paragraphs  as 
to  the  scope  and  nature  of  the  undertaking  will  gratify  one  indi- 
vidual at  least,  and  find  their  warrant  for  appearing,  in  an  im- 
memorial custom  that  now  has  all  the  force  of  a  vested  right. 

The  only  work  published  in  this  country  avowedly  dedicated  to 
the  consideration  of  criminal  evidence,  is  Dr.  Wharton's  exceed- 
ingly able  treatise  written  in  1846,  and  which  reached  its  last  edi- 
tion in  1884.  This  treatise  while  in  every  way  an  admirable  pre- 
sentation of  the  subject  as  reflected  by  the  learning  of  fifty  years 
ago,  has  encountered  the  infelicities  that  time  imposes  upon  every 
text-book,  however  meritorious  and  sufficiently  emphasizes  in  its 
present  condition  the  urgent  call  for  a  revised  and  modernized 
view  of  a  great  subject,  and  a  re-examination  of  former  postulates 
that  are  now  pronounced  untenable. 

It  is  universally  conceded  that  the  law  of  evidence  in  many  of 
its  relations  to  the  rules  of  pleading  and  practice  has  assumed, 
within  the  last  twenty  years,  an  importance  but  indifferently  ap- 
prehended by  early  writers.  The  laborious  researches  of  the  cele- 
brated commission  which  compiled  the  Anglo-Indian  Evidence 
Act,  resulted  in  a  new  analysis  and  classification  of  the  law.  These 
results  have  met  with  very  general  indorsement  by  both  the  Am- 
erican and  English  judiciary  "who  now  regard  the  law  of  evi- 
dence as  respects  the  relevancy  of  facts  from  the  standpoint  of 
inductive  logic,  as  systematized  and  refined  by  John  Stuart  Mill. 
The  relevancy  of  evidence  is  considered  in  their  view,  and  prop- 
erly so,  as  a  particular  case  of  the  process  of  induction;  the  pro- 
cess of  inferring  the  unknown  from  the  known.  A  fact,  if  it  is 
to  be  received  in  evidence  as  relevant,  must  base  its  claims  to 
consideration  by  the  jury,  upon  grounds  identical  with  those  upon 
which  a  fact  must  claim  consideration  at  the  hands  of  a  scientist 
when  investigating  physical  facts.  It  must  be  a  fact  having  a 
logical  place  in  the  chain  of  causation  with  reference  to  the  ulti- 
mate fact  to  be  proved."  Commissioners  Report,  Proposed  Code 
of  Evidence  of  the  state  of  JNew  York. 

(hi) 


IV  1'KEFACE. 


This  attribute  of  ''relevancy"  is  entirely  controlled  by  the  prin- 
ciples that  govern  logical  analysis,  while  it  adjusts  itself  to  the 
emergencies  of  the  particular  case  at  bar  through  the  application 
of  rules  that  are  in  no  wise  fettered  by  either  mere  precedent  or 
formula.  In  the  suggestive  language  of  Dr.  Wharton:  "It  is 
now  determined  by  the  laws,  not  of  formal  jurisprudence,  but  of 
free  logic ;  and  in  obedience  to  this  conviction  we  have  a  series 
of  recent  rulings  based  on  logical  as  distinguished  from  technically 
juridical  grounds." 

The  rapid  expansion  of  the  science  of  evidence  under  the  ad- 
vantages derived  from  past  experience  and  investigation,  has  sub- 
jected many  of  its  exclusionary  rules,  especially,  to  the  crucial  test 
of  both  forensic  and  judicial  review,  resulting  in  such  a  renova- 
tion of  early  theories  as  to  make  a  complete  re-examination  of  the 
entire  law  not  only  desirable  but  necessary.  One  difficulty  is 
obvious;  so  long  as  the  administration  of  remedial  and  punitive 
justice  reposes  in  numerous  independent  tribunals,  state  and  Fed- 
eral, it  is  inevitable  that  many  mooted  questions,  especially  those  of 
first  impression,  will  meet  with  discordant  interpretations  that  ulti- 
mately engender  such  permanent  contradiction  as  to  repel  all  hope 
of  reconciliation.  In  such  cases  it  has  been  my  endeavor  to  in- 
dicate the  reasoning  that  contributes  to  this  result,  by  apposite 
quotations  from  the  sustaining  authorities,  accompanied  by  such 
cautionary  suggestions  as  seem  desirable,  remembering  that  con- 
tradictory decisions  are  frequently  a  useful  warning  against  as- 
suming too  much  or  generalizing  too  far. 

As  in  the  preceding  volumes  the  writer  studiously  avoids  any 
obtrusion  of  his  personal  views,  and  the  constant  endeavor  is  to 
state  what  the  law  of  evidence  is,  first  in  its  statutory  phases,  and 
secondly  as  expounded  and  interpreted  by  our  courts  of  last  re- 
sort, acting  upon  the  impulse  given  by  logical  conclusions  assumed 
after  careful  examination.  In  the  endeavor  to  give  comprehen- 
siveness and  certitude  to  this  exposition,  I  have  had  recourse  to 
the  entire  mass  of  criminal  adjudication  as  preserved  in  our  vari- 
ous reports,  state  and  Federal,  while  the  leading  law  periodicals  of 
the  period  have  contributed  their  quota  of  information  to  the  same 
result.  Thousands  of  cases  have  been  critically  examined  and 
classified,  and  every  principle  implicated  with  the  scheme  of 
evidence  in  these  numerous  decisions  has  been  examined,  an- 
nounced and  digested. 


PREFACE.  V 

The  pivotal  concept  throughout  lias  been  to  display  the  entire 
range  of  evidentiary  law  under  its  modern  aspect — to  disclose  in 
the  simplest  manner  possible  the  principles  that  underlie  the  re- 
cent adjudications,  with  the  logic  sustaining  them,  and  to  place 
before  the  practitioner  an  assistant  that  will  be  found  responsive 
to  every  call  that  the  emergencies  of  a  hotly  contested  case  may 
reasonably  demand. 

My  further  endeavor  has  been  to  emancipate  the  text  as  far  as 
possible  from  metaphysical  discussion  and  relined  theorizing  and 
to  place  every  assertion  beyond  the  reach  of  suspicion,  by  citing 
in  its  support  the  deliberate  utterance  of  some  tribunal  entitled 
to  respect.  In  the  accomplishment  of  this  design  I  have  at  rare 
intervals  encountered  contradictions  of  the  character  referred  to. 
Frequently  these  discrepancies  of  view  in  the  various  jurisdic- 
tions arise  from  divergencies  in  the  organic  or  statutory  law  that 
inspire  antagonistic  rulings  that  must  be  recognized  as  necessities 
of  the  situation  and  which  must  both  be  accepted  and  treated  ac- 
cordingly. 

Following  numerous  precedents  the  subject  is  treated  under 
five  subdivisions  or  parts. 

Part  I.  considers  criminal  evidence  in  its  general  relations  to 
the  criminal  law.  In  many  instances  the  rule  announced  is 
equally  applicable  to  the  trial  of  a  civil  case,  and  in  rare  instances 
taken  m  extenso  from  the  preceding  volumes  on  Civil  Evidence. 
Cross-references  are  frequently  made  to  these  volumes  in  order  to 
avoid  a  duplication  of  statement,  and  to  economize  the  space, 
which  the  extent  and  scope  of  the  undertaking  requires. 

Part  II.,  discusses  the  instrumentalities  of  evidence  and  is  an 
extended  presentation  of  what  is  frequently  regarded  by  adroit 
practitioners  as  the  most  vexatious  phase  of  our  entire  subject. 

Part  III.,  exhibits  the  evidence  of  the  prosecution,  under  the 
recitals  of  the  indictment,  and  is  an  attempt  to  faithfully  portray 
the  rules  of  evidence  that  are  sanctioned  by  authority  in  order  to 
secure  the  conviction  of  the  accused. 

Part  IV.,  is  devoted  to  defensive  evidence,  and  is  expository  of 
those  rules  that  assist  in  determining  the  innocence  of  the  de- 
fendant. 

Part  V.,  is  a  somewnat  ambitious  attempt  to  simplify  and 
lucidly  state  the  more  intricate  problems  of  evidentiary  law  as 
found  in  the  trial  of  specific  offenses.     Here  I  have  endeavored 


VI  PREFACE. 

to  italicise  all  the  deviations  from  standard  rule  and  to  clearly  in- 
dicate the  logic  and  effect  of  these  deviations  both  upon  the  law 
and  upon  the  practice. 

As  an  aspirant  for  favorable  consideration  I  shall  not  rely 
either  upon  the  generosity  or  the  indifference  of  the  public,  but 
rather  confidently  depend  upon  its  sense  of  fairness  and  candor. 
Upon  this  I  base  a  hope  that  the  merits  of  my  undertaking  will 
be  found  to  far  outweigh  its  imperfections,  and  that  its  deficien- 
cies and  crudities  will  be  attributed,  in  part  at  least,  to  the  per- 
plexities imposed  by  the  extended  treatment  of  a  vast  subject, 
many  of  the  subordinate  phases  of  which  are  still  involved  in  con- 
tradiction and  obscurity,  while  others  still  are  without  'the  least 
aid  from  judicial  interpretation. 

It  is  believed  that  a  perusal  of  this  final  volume  will  justify  a 
conclusion  that  the  treatment  accorded  to  the  subject  has  been 
practical,  accurate  and  modern,  as  well  as  exhaustive  and  discrim- 
inating. Fkank  S.  Bice. 

Kochester,  May  15th,  1S93. 


TABLE  OF  CONTENTS. 


PART  I. 

DISCUSSION  AND  SUMMARY  OF  GENERAL  RULES. 
CHAPTER  I. 

INTRODUCTION. 

Seel.    Preliminary  Suggestions 1 

Sec.  2.    What  Distinguishes  Criminal  from  Civil  Evidence 2 

Sec.  3.    The  Term  "Evidence"  Defined 3 

Sec.  4.    Definitions  from  the  Celebrated  "Field  Code" 5 

Sec.  5.    Differences  in  the  Effect  of  Evidence 7 

Sec.  6.    Observations  on  the  Rules  of  Evidence 7 

Sec.  7.    What  is  Embraced  in  the  Term  "  Crime" 9 

Sec.  8.    What  is  Criminal  Law 10 

Sec.  9.    Principals  and  Accessories 11 

CHAPTER   II. 

JUDICIAL  NOTICE. 

Sec.  10.  Present  Attitude  of  Judicial  Authority 12 

Sec.  11.  Judicial  Notice  Excludes  the  Necessity  of  Proof .-. 13 

Sec.  12.  Late  Statute  Relating  to  the  Subject 13 

CHAPTER  III. 

PRESUMPTIONS. 

Sec.  13.  The  Term  Defined 15 

Sec.  14.  Presumptions  of  Law 16 

Sec.  15.  Presumptions  of  Fact 18 

Sec.  16.  Presumptions  of  Innocence 19 

Sec.  17.  Presumptions  of  Legitimacy _ 21 

Sec.  18.  Presumptions  of  Death 22 

a.  Raised  by  Continuous  Absence  for  Seven  Years 22 

b.  No  Presumption  as  to  the  Time  of  Death  Arises  from  Mere 

Absence .-.  23 

c.  How  Established 23 

d.  Importance  of  this  Presumption  in  Criminal  Law 24 

e.  Suicide 24 

Sec.  19.  Presumption  of  Sanity  and  Responsibility 25 

Sec.  20.  Presumption  where  Accused  is  under  Seven  Years  of  Age 26 

Sec.  21.  Continuance 27 

Sec.  22.  Presumption  of  Guilt  Arising  from  Silence  and  Conduct  Generally  28 

Sec.  23.  Presumption  of  Natural  Consequences  of  Act -  - . 30 

Sec.  24.  Statutory  Law  of  California  on  the  Subject 30 

(vii) 


Vlll  TABLE    OF   CONTENTS. 

CHAPTER  IV. 

PRIMA  FACIE  EVIDENCE. 

Sec.  25.  Term  Defined 35 

Sec.  26.  Case  Made  by 37 

Sec.  27.  Legislature  may  Declare  Effect  of 38 

CHAPTER  Y. 

BEST  AND  SECONDARY  EVIDENCE. 

Sec.  28.  Characteristics  of  Best  and  Secondary  Evidence 41 

Sec.  29.  Foundation  for  Secondary  Evidence _ 42 

Sec.  30.  Relaxation  of  the  Rule  in  Certain  Cases  44 

Sec.  31.  Notice  to  Produce 45 

CHAPTER  VI. 

DOCUMENTARY  EVIDENCE. 

Sec.  32.  Term  Defined 48 

Sec.  33.  Public  Documents  in  Evidence 50 

a.  Examined  Copy __ 52 

b.  Recent  State  Legislation  on  the  Subject 52 

c.  The  Rule  in  California 53 

d.  The  Rule  in  IS ew  York 54 

e.  Rule  in  United  States  Courts 55 

Sec.  34.  Refreshing  Memory  by  the  Use  of _ 56 

a.  Private  Accounts  and  Documents  Obtained  by  Seizure 58 

Sec.  35.  The  English  Rule 58 

Sec.  36.  Parol  Evidence  as  Affecting 62 

Sec.  37.  Maps,  Charts,  etc. ,  in  Evidence 62 

CHAPTER  VII. 

RELEVANCY. 

Sec.  38.  Preliminary  View,  Term  Defined 64 

Sec.  39.  Evidence  Confined  to  the  Point  in  Issue 66 

Sec.  40.  Relevancy,  how  Determined- 69 

Sec.  41.  The  Attributes  of  Relevancy 70 

Sec.  42.   Offer  of  Proof 72 

Sec.  43.  Indecency  no  Ground  for  Excluding  Relevant  Testimony 74 

CHAPTER  VIII. 

LETTERS. 

Sec.  44.  Present  Rules  Regarding  Letters 79 

Sec.  45.  Importance  of  Letters 80 

Sec.  46.  Originals  must  be  Produced  or  Accounted  for 80 

Sec.  47.  Letter-press  Copies ._  80 

Sec.  48.  Foundation  for  Secondary  Evidence  of  Contents 81 

Sec.  49.  Views  of  the  Massachusetts  Supreme  Court.. 81 

Sec.  50.  Mailing  Letters  Raises  the  Presumption  of  Receiving 82 

Sec.  51.  Genuineness  must  be  Shown 83 

Sec.  52.  Unanswered  Letters ._ 84 

Sec.  53.  Failure  to  Answer  as  Admission 84 

Sec.  54.  Extract  from  a  Lost  Letter 84 

Sec.  55.  Decoy  Letters .  85 

Sec.  56.  Miscellaneous  Authorities. 85 


TABLE    OF    CONTENTS.  IX 

CHAPTER  IX. 

TELEGRAMS. 

Sec.  57.  Rule  as  to  Letters  Applied  - 88 

Sec.  58.   Original  Message  the  Primary  Evidence _  89 

Sec.  59.  Views  of  Different  Courts. 90 

a.  Of  Illinois  Supreme  Court 90 

b.  Of  Alabama  Supreme  Court _.  91 

c.  Of  the  United  States  Circuit  Court 92 

Sec.  CO.  Presumptions  as  to  Telegrams 94 

Sec.  61.  Secondary  Evidence  of  Contents 95 

CHAPTER  X. 

MEMORANDA  IN  EVIDENCE. 

Sec.  62.  Prerequisites  Necessary  to  the  Introduction  of  Memoranda 96 

Sec.  63.  Time  of  Making  Memoranda 96 

Sec.  64.  Memoranda  of  Party  Since  Deceased 97 

Sec.  65.  Views  of  tbe  United  States  Supreme  Court 98 

Sec.  66.  Views  of  the  Alabama  Supreme  Court 98 

Sec.  67.   Statement  of  the  English  Rule 100 

Sec.  68.  A  Distinction  Noted 100 

Sec.  69.  Restrictions  of  the  General  Rule.  .   101 

Sec.  70.   Recent  Cases  Examined 102 

Sec.  71.  The  Formula  Deduced 107 

CHAPTER  XL 

PROOF  OF  HANDWRITIN'G- 

Sec.  72.  How  and  by  Whom  Proved 109 

Sec.  73.  Rule  as  to  Proof  by  Comparison  in  Different  States. 110 

a.  Rule  in  Vermont 110 

b.  Rule  in  Massachusetts 110 

c.  Rule  in  New  York 111 

d.  Rule  in  Alabama,  Ohio  and  South  Carolina 112 

Sec.  74.  Miscellaneous  Authorities  Examined 114 

Sec.  75.  Views  of  Mr.  Wills 116 

CHAPTER   XII. 

PAROL  EVIDENCE. 

Sec.  76.  Its  Extended  Relatious  to  Criminal  Cases  Illustrated 118 

Sec.  77.  Statutory  Instances  of  its  Relevancy 119 

Sec.  78.  Must  in  all  Instances  be  Direct 121 

Sec.  79.  Competent  in  Cases  of  Lost  Instruments. 121 

CHAPTER  XIII. 
RES  GESTAE. 

Sec.  80.  Statement  and  Illustration  of  the  Principle 122 

a.  Difficulty  in  Determining  what  is 125 

b.  Views  of  Mr.  Rapalje 125 

c.  The  General  Rule 125 

Sec.  81.  What  Evidence  is  Competent  in  Proof _  126 

a.  The  Rule  in  Roscoe 127 

Sec.  82.  Perplexing  Nature  of  the  Proof  of. 128 


X  TABLE    OF    CONTENTS. 

Sec.  83.  Three  Leading  Cases  Examined 128 

a.  Pennsylvania  Case 128 

b.  Michigan  Case -  - 130 

c.  A  New  York  Case - -- 131 

CHAPTER    XIV. 

HEARSAY  EVIDENCE. 

Sec.  84.  Rule  in  Civil  Cases  Applied 133 

•Sec.  85.  General  Rule  Excluding - -  -  133 

•Sec.  86.  Exceptions  Noted  by  a  "Prominent  Text  Writer 134 

Sec.  87.  When  the  Rule  in  Civil  Cases  does  not  Apply 136 

Sec.  88.  The  Rule  from  Roscoe -- 136 

CHAPTER    XV. 

QUESTIONS  OF  LAW  AND  FACT. 

Sec.  89.  Preliminary  View 138 

Sec.  90.  Jury  as  Judges  of  the  Law  and  the  Fad 139 

Sec.  91.  Decisions  Considered .. -_ 140 

Sec.  92.  Plea  of  Not  Guilty  Raises  a  Question  of  Fact 142 

Sec.  93.  Evidence  of  Habit  is  a  Question  of  Fact ..  142 

Sec.  94.  The  Result  Stated 142 

CHAPTER  XVI. 

SCIENTIFIC  BOOKS  IN  EVIDENCE. 

Sec.  95.  Species  of  Evidence  not  Favored 144 

Sec.  96.  Not  Read  in  Argument  to  Jury 146 

Sec.  97.  Partial  Review  of  Authorities 146 

Sec.  98.  Views  of  Mr.  Moak.. 147 

Sec.  99.  Exception  Noted .. 149 

CHAPTER  XVII. 

PHOTOGRAPHY  IN  EVIDENCE. 

Sec.  100.  Value  of  Photography  in  Evidence 150 

Sec.  101.   The  Celebrated  Udderzook  Case  Examined 150 

Sec.  102.  Accuracy  of  Photograph  may  be  Questioned 151 

Sec.  103.  Photographs  of  Documents  when  Admissible - 152 

CHAPTER  XVIII. 

ORDER  OF  PROOF. 

Sec.  104.   Order  of  Proof  Largely  Discretionary.. 155 

Sec.  105.  General  Rule  as  to  the  Prosecution 155 

Sec.  106.   Usual  Order  of  Proof  in  Criminal  Cases 15*1 

Sec.  107.  Abuse  of  Discretion  as  Subject  of  Review 157 

Sec.  108.   Rule  as  to  New  Evidence... ... 157 

Sec.  109.   Pertinent  Evidence  may  be  Received  at  any  Time 157 

Sec.  110.  Views  of  Judse  Rosevelt 158 

Sec.  111.  Conditional  Reception  of  Evidence  on  Promise  to  Show  Rele- 
vancy   159 

Sec.  112.  Continuance  Granted  when 159 


TABLE    OF    CONTENTS.  XI 

CHAPTER  XIX. 
EVIDENCE  NECESSARY  TO  SECURE  A  CONTINUANCE. 

Sec.  113.  Rule  the  Same  as  in  Civil  Cases 162 

Sec.  114.  Right  not  Affected  by  Admissions  of  Opposite  Party. 162 

Sec.  115.  What  Evidence  is  Necessary  to  Secure - 164 

Sec.  116.  What  Motion  Papers  should  Prove 165 

CHAPTER  XX. 

VARIANCE— IDEM  SONANS. 

Sec.  117.  The  Term  Variance  Denned 167 

Sec.  118.  Proofs  and  Allegations  must  Correspond ... 167 

Sec.  119.  General  Rule  of  Criminal  Pleading  Stated 168 

Sec.  120.  Illustration  of  these  Rules 168 

Sec.  121.  Only  Material  Variance  will  be  Regarded 169 

Sec.  122.  When  Variance   between  Indictment  and  Proof  will  Call  for 

Amendment 170 

Sec.  123.  The  Doctrine  of  Idem  Sonans  Stated 170 

Sec.  124.  Instances  of  Immaterial  Variance  in  Name... 171 

Sec.  125.  Extended  Tabulation  of  the  Cases  from  Rapalje's  Criminal  Pro- 
cedure  173 

CHAPTER  XXI. 
VIEWING  THE  PREMISES. 

Sec.  126.  View  Regulating  the  Statute 175 

Sec.  127.  Theory  of  Mr.  Wharton 175 

Sec.  128.  New  York  Code  Provisions 176 

Sec.  129.  The  Views  of  the  New  York  Supreme  Court 176 

Sec.  130.  Vigorous  Opposition  to  the  Views  Last  Cited ^,. 179 

CHAPTER  XXII. 
OPENING  AND  CLOSING  THE  CASE. 

Sec.  131.  Object  of 181 

Sec.  132.  Extent  to  which  Counsel  may  go  in  Opening 181 

Sec.  133.  Duty  of  the  Respective  Counsel  in  Closing  the  Case 183 

Sec.  134.  Arguing  from  Facts  not  in  Evidence 185 

CHAPTER  XXIII. 

CHARGING  THE  JURY  ON  THE  EVIDENCE. 

Sec.  135.  Extreme  Importance  of  the  Subject 186 

Sec.  136.  Prominent  Features  of  the  Charge 188 

Sec.  137.  The  Formula  Usually  Adopted 189 

Sec.  138.   Mistake,  how  Rectified 192 

Sec.  139.   Instances  of  Fatal  Error 192 

Sec.  140.  Instructions  must  be  Regarded  in  their  Entirety 194 

Sec.  141.  Court  Cannot  Assume  any  Fact  Established  when  there  is  Con- 
flict  -  195 

Sec.  142.   Instructions  are  Advisory  in  their  Nature... .  196 

Sec.  143.  Parlies  may  Submit  Requests  to  Charge 197 

Sec.  144.  Instances  of  Harmless  Error 198 

Sec.  145.  The  Conclusion  Reached  as  to  Instructions 198 

Sec.  146.   Power  to  Direct  a  Verdict - --  199 


XLL  TABLE    OF   CONTENTS. 

CHAPTEE  XXIV. 

EVIDENCE  OF  PREJUDICIAL  JURY. 

Sec.  147.  Accused  is  Eutitled  to  Fair  and  Impartial  Jury 200 

Sec.  148.  Mere  Abstract  Opinion  of  Guilt  No  Ground  for  Objection 200 

Sec.  149.  The  Test  of  Competency 201 

Sec.  150.  When  the  Objection  should  be  Regarded 203 

Sec.  151.  Irregularity  of  the  Grand  Jury  may  be  Shown 204 

Sec.  152.  Evidence  in  Support  of  Verdict _.  206- 

CHAPTER  XXV. 

EVIDENCE  OF  OTHER  OFFENSES. 

Sec.  153.  The  General  Rule  Excludes 207 

Sec.  154.  An  Exception  Noted  to  the  Above  Rule 208 

Sec.  155.   Evidence  of  Another  Crime  if  Pertinent  to  the  Issue  is  Admis- 
sible  216- 

Sec.  156.  Rule  as  to  Misdemeanors 217 

Sec.  157.  Evidence  of  Other  Offenses  should  be  Cautiously  Admitted 218 

Sec.  158.  Fabrication  and  Suppression  of  Evidence 2191 

CHAPTEE  XXVI. 

DUTY  OF  THE  JURY  IN  WEIGHING  EVIDENCE. 

Sec.  159.  What  Rules  should  Govern 223 

Sec.  160.  A  Distinction  Noted.. 225 

Sec.  161.  Reconciling  Variances 226 

Sec.  162.  Review  of  an  Apt  Decision  in  the  United  States  Circuit  Court..  226 

Sec.  163.  Notes  and  Memoranda  in  the  Jury  Room 227 

Sec.  164.  May  Return  into  Court  for  Information 227 

Sec.  165.  Instructions  as  to  Duty  in  Weighing  Evidence 228 

Sec.  166.  Relative  Weight  of  Positive  and  Negative  Testimony.  _. 228 

Sec.  167.  Nature  and  Scope  of  the  Scintilla  Doctrine 229 

Sec.  168.  Statement  of  the  Pennsylvania  Rule ._  232 

Sec.  169.  Views  of  Judge  Foster... 232 

CHAPTEE  XXVII. 

EVIDENCE  ON  APPLICATION  FOR  A  NEW  TRIAL. 

Sec.  170.  Preliminary  Remarks. 234 

Sec.  171.  Prevailing  Practice  Outlined 235 

Sec.  172.  In  what  Cases  Granted... 23ft 

Sec.  173.  What  Evidence  should  Show 236 

Sec.  174.  Doctrine  of  Anarchist's  Case  Stated.. 237 

Sec.  175.  Conflict  in  Evidence  Ground  for 238 

Sec.  176.  Insufficiency  of  the  Evidence  as  Ground  for 238 

Sec.  177.  Verdict  against  Weight  of  Evidence 242 

Sec.  178.  Newly  Discovered  Evidence 243 

Sec.  179.   Admission  of  Illegal  Evidence  as  Ground  for 244 

Sec.  180.  Statements  of  Prosecuting  Attorney  of  Matters  not  in  Evidence.  245 
Sec.  181.  Failure  to  Object  to  the  Admission  of  Improper  Evidence  no 

Ground  for 248 

Sec.  182.  Doctrine  of  Invited  Error  Considered 249 

Sec.  183.  Technical  Errors  Disregarded  in  Motion  for 250 

Sec.  184.  Misconduct  of  Jury  as  Ground  for 251 

Sec.  185.  Evidence  of  Irregularity  in  the  Composition  of  the  Grand  Jury.  254- 


TAI5LK    OF    CONTENTS.  X1L1 

Sec.  18G,  Evidence  of  the  Record  on  Appeal 257 

a.  Rules  in  Admitting  and  Excluding  Evidence. 257 

b.  Consideration  of  the  Exceptions 258 

c.  When  Exceptions  are  Deemed  Waived 261 


PART  II. 

THE  INSTRUMENTALITIES  OF  EVIDENCE. 

CHAPTER   XXVIII. 

SECURING  THE  ATTENDANCE  OF  WITNESSES. 

Sec.  187.  Subpuma,  the  Term  Denned  by  Bnuvier 263 

Sec.  188.  Constitutional  Guaranties  to  the  Right  to  this  Process 264 

Sec.  189.  Characteristics  of  the  Writ -. 264 

Sec.  190.  United  States  Revised  Statutes  on  the  Subject 265 

Sec.  191.  Comments  on  the  Writ 265 

Sec.  192.  Views  of  Mr.  Justice  Thornton 267 

Sec.  193.  Code  Provisions  on  the  Subject 271 

a.  Tennessee.. 271 

b.  Minnesota 271 

c.  California   272 

Sec.  194.  Writ  of  Habeas  Corpus  may  Issue  when 273 

CHAPTER   XXIX. 

COMPETENCY  AND  CREDIBILITY  OF  WITNESSES. 

Sec.  195.  The  Term  Defined 275 

Sec.  196.  Competency  Generally  Presumed 275 

Sec.  197.  General  Abrogation  of  Former  Disqualifying  Laws 278 

Sec.  198.  New  York  and  California  Rules  Relating  to  the  Subject-.   278 

Sec.  199.  Theory  of  Chief  Justice  Appleton 279 

Sec.  200.  Exceptions  to  the  General  Rule 280 

a.  Husband  and  Wife 280 

b.  Exception  Arising  from  Lunacy  or  Intoxication 286 

c.  Exception  as  to  Deaf  Mutes ._  289 

d.  Exception  as  to  Infancy 289 

e.  Summary  of  the  Foregoing  Exceptions 291 

Sec.  201.  Credibility  of  Witnesses  is  for  the  Jury 292 

Sec.  202.  Effect  of  False  Testimony  on  Credibility 293 

CHAPTER   XXX. 

PRIVILEGE  OF  WITNESSES. 

Sec.  203.  Refusal  to  Answer  Criminating  Questions 296 

Sec.  204.  Witness  may  Waive  his  Privilege 296 

Sec.  205.  Court  must  Determine  the  Force  of  the  Refusal .  297 

Sec.  206.  Restrictions  upon  the  Privilege _ 298 

Sec.  207.  Recent  Judicial  Reviews  of  the  Subject L".)!J 

Sec.  208.  The  Privilege  of  Attorneys ._  314 

Sec.  209.  The  Privilege  of  Physicians 317 

Sec.  210.  The  Privilege  of  Clergymen 318 


XIV  TABLE    OF   CONTENTS. 

CHAPTER  XXXI. 

THE  EXAMINATION  OF  WITNESSES. 

Sec.  211.  Method  Discretionary  with  the  Trial  Court 319" 

Sec.  212.   Strict  Mode  of  Procedure  Seldom  Pursued 320 

Sec.  213.  Witness  must  Testify  to  Facts  Within  his  Knowledge 321 

Sec.  214.  Examination  in  Chief — Views  of  Prominent  Text  Writers 321 

Sec.  215.  Object  of  the  Examination  in  Chief 322 

Sec.  216.  Rule  as  to  Leading  Questions 323 

Sec.  217.  No  Material  Fact  in  Issue  can  be  Assumed  on  Examination 326 

Sec.  218.  Nature  and  Scope  of  the  Rebuttal  Evidence  in  Criminal  Cases..  326 

Sec.  219.  The  Cross-examination 329' 

a.  Rule  as  to  Hostile  Witness 330 

b.  Confined  to  Relevant  Facts 331 

c.  When  Party  Makes  Witness  his  Own 333 

d.  Rule  as  to  Collateral  Matters 332 

e.  Duty  of  the  Court  to  Protect  the  Witness 334 

f.  Cross-examination  during  Absence  of  the  Accused 335 

g.  Recalling  Witness... 335 

h.  Views  of  Sir  James  Stephen 336 

i.    Cause  for  Remembering  Certain  Facts 336 

j.   The  English  Rule 337 

Sec.  220.  Importance  of  Cross-examination 337 

Sec.  221.  Extent  of  the  Cross-examination 338 

Sec.  222.  When  Answer  is  Conclusive 341 

Sec.  223.  Cross-examination  of  Defendant  in  his  Own  Behalf 342 

Sec.  224.  Testimony  of  Witness  since  Deceased,  Given  on  Former  Trial..  345 

Sec.  225.  Testimony  of  the  Accused  on  his  Preliminary  Examination 357 

Sec.  226.  Summary  of  the  Views  here  Stated 358 

CHAPTER  XXXII. 

IMPEACHMENT  OF  WITNESSES. 

Sec.  227.  General  Rules  Relating  to 359' 

Sec.  228.  Great  Latitude  Allowed  in  Cross-examination 360 

Sec.  229.  To  what  the  Attention  of  the  Witness  should  be  Called 361 

Sec.  230.  California  Code  Provisions  on  the  Subject 362 

Sec.  231.  When  the  Impeachment  is  Effected 363 

Sec.  232.  Importance  of  Impeaching  Testimony 363 

Sec.  233.  Partial  Review  of  the  Decisions _ 364 

Sec.  234.  When  Party  may  Contradict  His  Own  Witness 368 

Sec.  235.  Statement  of  the  New  York  Rule.. 369 

Sec.  236.  Inconsistent  Statements  may  be  Shown 370 

Sec.  237.  Discrediting  Party's  own  Witness  on  Ground  of  Surprise 372 

Sec.  238.  Party  may  Impeach  a  Witness  he  is  Compelled  to  Call 374 

Sec.  239.  Specific  Acts  of  Immorality  cannot  be  Shown 375- 

Sec.  240.   An  Examination  of  Authorities 376 

Sec.  241.  When  Declarations  Made  out  of  Court  are  Admissible 378 

Sec.  242.  Interpreter  may  be  Impeached 378 

CHAPTER  XXXIII. 

DEPOSITIONS  IN  CRIMINAL  CASES. 

Sec.  243.  Only  Admitted  by  Force  of  Statute 379' 

Sec.  244.  Exposition  of  this  Subject  by  New  York  Court  of  Appeals 383 

a.  Extreme  Importance  of  the  Right 385 

b.  Views  of  Distinguished  Judges 385 

Sec.  245.  New  York  Criminal  Code  Provisions  Stated 389. 

Sec.  246.  Statement  of  the  English  and  California  Rule 394 

Sec.  247.  Examination  of  Witnesses  Conditionally  for  the  Accused 396' 


TABLE   OF    CONTENTS.  XV 

PART  III. 

EVIDENCE  FOR  THE  PROSECUTION. 

CHAPTER  XXXIY. 

EVIDENCE  AFFORDED  BY  THE  INDICTMENT. 

Sec.  248.  What  Allegations  must  be  Proved  and  What  may  be  Suggested.  397: 

Sec.  249.  Phillips'  "Three  Rules"  Stated 402; 

Sec.  250.  Characteristics  of  an  Indictment 402' 

Sec.  251.  Rule  Observed  in  Framing 403 

Sec.  252.   Former  Strictness  Relaxed 405 

Sec.  253.  Names  of  Witnesses  must  be  Indorsed  upon  Indictment 406 

Sec.  254.  Evidence  of  Time  and  Place 407 

Sec.  255.  Quashing  Indictment  Founded  on  Illegal  Evidence  Given  before 

the  Grand  Jury 409 

Sec.  256.  When    Evidence    Introduced    to  Sustain   Indictment   may  be 

Stricken  out 414 

a.  Examination  of  the   Principle  Affecting  this  Right  to 

Exclude 415- 

b.  Views  of  Justice  McGowan  and  Others 415 

c.  Prejudice  must  have  Resulted  or  Incompetent  Evidence 

will  Stand 418 

d.  When  Incompetent  Evidence  is  not  Deemed  Harmless  ..419 

e.  When  Motion  to  Strike  out  must  be  Made 420* 

CHAPTER  XXXA^. 
BURDEN  OF  PROOF. 

Sec.  257.  Preliminary  View _ 421 

Sec.  258.  Burden  of  Proof  Rests  upon  the  Prosecution 421 

Sec.  259.  Never  Shifts,  but  is  with  Prosecution  throughout 424 

Sec.  260.  Where  a  Fact  is  Peculiarly  within  the  Knowledge  of  a  Party...  425 

Sec.  261.  When  Accused  must  Establish  the  Defense  of  Insanity 426 

Sec.  262.  Proving  a  Negative 426 

Sec.  263.  A  Prima  Facie  Case  will  not  Rebut  the  Presumption  of  Inno- 
cence  ..  427 

Sec.  264.  Burden  of  Proof  in  Statutory  Crimes 42s 

Sec.  265.  The  Rule  Deduced  from  the  Celebrated  Stokes  Case 42s 

Sec.  266.  Views  of  Sir  James  Stephen _._ 429 

Sec  267.  Summary  of  the  Conclusion  Reached 429 

CHAPTER   XXXYI. 
REASONABLE  DOUBT. 

Sec.  208.  Difficulty  in  Defining 431 

Sec.  269.  The  Phrase  "Moral  Certainty"  Examined. 435 

Sec.  270.  Observations  of  Authority  on  the  Term  "Reasonable  Doubt" 436 

Sec.  271.  Views  of  the  Missouri  Supreme  Court 437 

Sec.  272.  Extended  Citation  of  Authorities 439' 

CHAPTER  XXXVII. 

EVIDENCE  OF  MALICE,  MOTIVE.  PREMEDITATION  AND  IN- 
TENT. 

Sec.  273.  Malice  Defined. 441 

Sec.  274.  May  be  Expressed  or  Implied 442; 


XVI  TABLE    OF    CONTENTS. 

Sec.  275.  How  Proved -  442 

Sec.  276.  Burden  of  Proof  as  to 443 

Sec.  277.  Intoxication  as  Affecting  Malice 443 

Sec.  278.  Legal  Significance  of  the  Term  "Motive" 444 

Sec.  279.  Term  "Motive"  Denned 445 

Sec.  280.  Collateral  Facts  in  Relation  to  Motive 446 

Sec.  281 .  Any  Proof  Suggesting  Motive  is  Relevant -  447 

Sec.  282.  What  is  Implied  by  tbe  Term  "Premeditation" 447 

Sec.  283.  Wide  Range  of  the  Evidence  as  to  Premeditation ...  448 

Sec.  284.  Statement  of  the  Rule  as  to  Criminal  Intent _ 449 

Sec.  285.  Intent,  how  Proved 449 

Sec.  286.  Presumption  as  to 450 

Sec.  287.  Prosecution  may  Show  Evil  Intent _-.  451 

Sec.  288.  Accused  may  Testify  as  to  his  Intent 452 

Sec.  289.  Digest  Form  of  the  Present  Rule 455 

Sec.  290.  When  Conviction  may  be  had  in  the  Absence  of  Criminal  Intent  455 

Sec.  291.  Time  not  Necessary  to  form  Criminal  Intent 456 

Sec.  292.  Review  of  the  Authorities 457 

CHAPTEK  XXXVIII. 

CORPUS  DELICTI. 

Sec.  293.  The  Term  Defined 465 

Sec.  294.  Full  Proof  of  not  Required. 466 

Sec.  295.  What  must  be  Shown 466 

Sec.  296.  Cannot  be  Proved  by  Uncorroborated  Confessions 467 

Sec.  297.  May  be  Shown  by  Circumstantial  Evidence 469 

Sec   298.   Recent  Legislation  on  the  Subject 474 

Sec.  299.  Intent  of  the  Rule  Requiring  Proof  of 479 

CHAPTER   XXXIX. 

EVIDENCE  OF  IDENTITY. 

Sec.  300.  A  Cautionary  Paragraph.. 480 

Sec.  301.  Circumstances  from  which  Identity  may  be  Inferred 481 

Sec.  302.  Voice  as  Evidence  of  Identity 482 

a.  Telephonic  Communications 483 

Sec.  303.  Dress  as  a  Means  of  Identification 485 

Sec.  304.   Perplexing  Nature  of  this  Grade  of  Evidence 486 

Sec.  300.  Cautionary  Suggestions  of  Mr.  Justice  Taylor 486 

CHAPTER  XL. 

CONFESSIONS,  CONDUCT  AND  DEMEANOR  OF  THE  ACCUSED. 

Sec.  306.  The  Term  "  Confessions  "  Defined 488 

Sec.  307.  Confessions  must  be  Voluntary 489 

Sec.  308.  Judge  to  Decide  if  Confession  is  Voluntary 491 

Sec.  309.   Presumption  as  to 491 

Sec.  310.  If  Elicited  by  Fear  or  Menace  should  be  Rejected 492 

Sec.  311.  Great  Caution  Enjoined  in  Receiving. 494 

Sec.  312.  Province  of  Court  and  Jury  with  Reference  to 496 

Sec.  313.  Confessions  not  Conclusive 497 

Sec.  314.  Credibility  of  the  Witnesses  Proving  may  be  Examined 497 

Sec.  315.  Confessions  under  Intoxication 498 

Sec.  316.  Confessions  Obtaiaed  by  Improper  Influence 499 

Sec.  317.  New  York  Rule  Relative  to 499 

See.  318.  Demeanor  of  the  Accused  when  under  Arrest— Effect  of  Silence  500 


TABLE   OF    CONTENTS.  XV11 

CHAPTER  XLI. 

EVIDENCE  AFFORDED  BY  ACCOMPLICES. 

Sec.  319.  Who  is  an  Accomplice. 505 

Sec.  820.  Immunities  of 505 

Sec.  321.  Testimony  of  Accomplice  Competent  to  Convict 506 

Sec.  322.  Caution  against  the  Infirmities  of  this  Evidence .  506 

Sec.  323.  Corroborative  Testimony  should  by  Required 508 

Sec.  324.  Extent  of  Corroboration  is  for  the  Jury 511 

Sec.  325.  Cross-examination  of  an  Accomplice ..  517 

Sec.  326.  Rights  of  an  Accomplice  Giving  Evidence  for  the  State 518 

Sec.  327.  Rule  as  to  Co-defendants  who  have  Pleaded  Guilty 519 

Sec.  328.  Credibility  of  Accomplice  is  for  the  Jury 522 

Sec.  329.  Evidence  of  Detectives,  Decoys  and  Spies 522 


CHAPTER  XLIL 

DYING  DECLARATIONS. 

Sec.  330.  Characteristics  and  Scope  of 527 

Sec.  331.  Admissible  only  when  Death  is  the  Subject  of  the  Charge 529 

Sec.  332.  Not  Competent  in  Cases  of  Abortion 530 

Sec.  333.  Admitted  on  Ground  of  Necessity  Alone _ 532 

Sec.  334.  An  Exception  to  the  Rule  Regarding  Hearsay 533 

Sec.  335.  Imminency  of  Death  must  be  Apparent 534 

Sec.  336.  Infirmities  of  this  Evidence  Outlined 535 

Sec.  337.  Accused  may  Show  Want  of  Belief  that  Death  is  at  Hand 536 

Sec.  338.  Matters  of  Mere  Opinion  are  Inadmissible... 536 

Sec.  339.  Narratives  of  Past  Occurrences  are  Inadmissible 538 

Sec.  340.  Impeaching  Character  of  Declarant 538 

Sec.  341.  Illustrations  of  Extreme  Rulings 539 


CHAPTER   XLIII. 

CIRCUMSTANTIAL  EVIDENCE. 

Sec.  342.  Term  Defined... 544 

Sec.  343.  Test  of  Sufficiency 546 

Sec.  344.  Theory  of  the  "  Connected  Chain  "  Examined 546 

Sec.  345.  Direct  and  Circumstantial  Evidence  Contrasted 548 

Sec.  346.  What  must  be  Proved  to  Warrant  a  Conviction  by 549 

Sec.  347.  Instructions  from  the  Court  Regarding  this  Grade  of  Evidence..  551 

Sec.  348.  Great  Latitude  Allowed  in  the  Reception  of 552 

Sec.  349.  Views  of  Eminent  Text-writers 552 

Sec.  350.  Review  of  the  Celebrated  Webster  Case— the  Harris  Case. 553 

Sec.  351.  The  Maybrick  Case  Considered 557 

Sec.  352.  The  Stokes  Case  Considered... 559 

Sec.  353.  Views  of  the  Texas  Supreme  Court. 559 

Sec.  354.  Comparative  Weight  of  Direct  and  Circumstantial  Evidence 559 

Sec.  355.  Rules    of    Induction    Specially    Applicable    to    Circumstantial 

Evidence 561 

Sec.  356.  The  Rule  in  Civil  Actions  Having  Criminal  Attributes 565 

B 


/ 

Xviii  TABLE   OF   CONTENTS. 

PAET  IY. 

EVIDENCE  FOR  THE  DEFENSE. 

CHAPTER  XLIV. 

EVIDENCE  OF  SELF-DEFENSE. 

Sec.  357.  Preliminary  Remarks 567 

Sec.  358.  What  must  Appear  to  Justify  the  Claim  of  Self  defense 568; 

Sec.  359.  Self-defense  Rests  upon  Necessity 571 

Sec.  360.  Extent  of  the  Retreat 572 

Sec.  361.  When  Heroic  Methods  may  be  Employed 574 

Sec.  362.  Threats  Considered  in  Relation  to  Self-defense __  575 

Sec.  363.  Threats  Competent  to  Show  Intent 579 

Sec.  364  The  Rule  in  Alabama. 585 

Sec.  365.  Proof  of  Lying  in  Wait  and  Violent  Temper 585 

Sec.  366.  Vacillation  in  the  Authorities 589 

Sec.  367.  Pertinent  Illustration  of  a  Missouri  Case 589 

Sec.  368.  Views  of  the  Virginia  Court 590 

Sec.  369.  Wbat  is  Reasonable  Cooling  Time. 592 

Sec.  370.  Extended  Collation  of  Authority 594 

CHAPTER  XLY. 

EVIDENCE  OF  CHARACTER. 

Sec.  371.  Statement  of  the  Present  Rule 596 

Sec.  372.  Record  Evidence  of  Bad  Character  how  Rebutted 597 

Sec.  373.  What  Evidence  of  Character  may  Show 598 

Sec.  374.  Always  Available  where  Evidence  is  Circumstantial 599 

Sec.  375.  The  Cases  Examined 600 

Sec.  376.  When  Evidence  is  Confined  to  General  Reputation 604 

Sec.  377.  The  English  Rule  Examined 605 

Sec.  378.  When  Evidence  of  Good  Character  is  Unavailing 606 

Sec.  379.  The  Rule  Restated 607 

Sec.  3S0.  When  Negative  Evidence  of  Character  is  Competent 608 

CHAPTER  XLVL 

EVIDENCE  OF  FORMER  JEOPARDY  OR  CONVICTION. 

Sec.  381.  Doctrine  of  Autrefois  Acquit  and  Convict  Examined 612 

Sec.  382.  How  Question  is  Determined 615 

Sec.  383.  Views  of  Mr.  Bishop 616 

Sec.  384.  Evidence  that  Jury  were  Discharged  is  Equivalent  to  an  Ac- 
quittal   616 

Sec.  385.  Miscellaneous  Authorities  Examined 616 

CHAPTER  XLVIL 

DRUNKENNESS,  INFANCY  AND  COVERTURE  AS  AN  EXCUSE 

FOR  CRIME. 

Sec.  386.  Preliminary  Statement 620 

Sec.  387.  Drunkenness  no  Excuse  for  Crime '_ 620 

Sec.  388.  Presumption  of  Sanity  Obtains 623 

See.  389.  New  York  Code  Provisions 623 

Sec.  390.  Statement  of  the  General  Rule 624 

Sec.  391.  Instances  of  its  Availability 624- 


TABLE    OF    CONTEXTS.  XIX 

Sec.  392.  A  Distinction  Noted. 627 

Sec.  393.  Non- Age  as  an  Excuse  for  Crime 628 

Sec.  394.  The  Authorities  Examined 629 

Sec.  395.  Evidence  of  Marital  Coercion  as  an  Excuse 631 

CHAPTER  XLVIII. 

EVIDENCE  OF  INSANITY. 

Sec.  396.  Preliminary  Observations . . 634 

Sec.  397.  Conflicting  Theories  Regarding  the  Subject G34 

Sec.  398.  Insanity  should  be  Established  beyond  a  Reasonable  Doubt 636 

Sec.  399.  Statement  in  the  Doctrine  of  the  Boswell  Case 638 

Sec.  400.  Wide  Acceptance  of  the  Rule  last  Stated 640 

Sec.  401.  Attitude  of  the  New  York  Court 641 

Sec.  402.  The  Celebrated  McNaghten  Case  Considered _  642 

Sec.  403.  The  "  Right  and  Wrong"  Test  Considered  by  Mr.  Justice  Ladd 

of  New  Hampshire 645 

a.  Analysis  of  the  NcNaghten  Case 646 

b.  The  Result  Examined (147 

c.  Worthlessness  of  the  Conclusion  Shown 649 

d.  Practical  Repudiation  of  the  McNaghten  Case  by  Eng- 

lish Jurists 650 

Sec.  404.  Early  Views  of  the  Massachusetts  Court 650 

Sec.  405.  New  York  and  Pennsylvania  Cases  Considered.. 651 

Sec.  406.  Instances  where  all  Tests  have  been  Discarded 652 

Sec.  407.  Delaware  Adopts  the  New  Hampshire  View 653 

Sec.  408.  The  "  Right  and  Wrong"  Test  in  Formulas 654 

Sec.  409.  Liberal  Views  of  the  Alabama  Supreme  Court 655 

a.  As  to  Medical  Experts 656 

b.  But  Three  Questions  for  the  Jury.. 658 

c.  Modification  of  the  Rule  in  Boswell's  Case. 659 

d.  "Right  and  Wrong"  Test  Denounced 659 

e.  Rule  of  the  French  and  German  Criminal  Codes  Stated 661 

f.  Dissenting  Views  of  Chief  Justice  Stone.. 661 

g.  A  Cautionary  Paragraph. 663 

Sec.  410.  The  Problem  Considered  by  Dr.  Ordronaux. 663 

Sec.  411.  The  Guiteau  Case  Examined 665 

a.  Abuse  of  Insanity  as  a  Defense 665 

b.  Evidence  of  Insanity  in  Parents  and  Immediate  Relatives.  666 

c.  Legitimate  Conclusions  from  the  Evidence 666 

d.  The  McNaghten  Case  again  Reviewed 667 

e.  Monomaniac  and  Insane  Delusions  Considered 668 

f.  Unsworn  Declarations  of  the  Accused 669 

g.  The  Test  of  Criminal  Responsibility. 670 

h.  Theory  of  Irresistible  Impulse  Examined... 671 

i.  Review  of  the  State  Decisions 072 

j.  Comments  of  Judge  Somerville 074 

Sec.  412.  Views  of  Mr.  Robert  Desty _  675 

Sec.  413.  Views  of  the  Florida  Supreme  Court 675 

Sec.  414.  Moral  Insanity  as  an  Excuse  for  Crime 676 

Sec.  415.  Summary  of  the  Conclusions  Reached 677 

Sec.  416.  Review  of  the  Subject  by  the  Nevada  Supreme  Court 078 

CHAPTER  XLIX. 
EVIDENCE  OF  ALIBI. 

Sec.  417.  Term  Defined 681 

Sec.  418.  Essentials  of  Alibi  Evidence 681 

Sec.  419.  What  the  Proof  Involves 681 

Sec.  420.  Credibility  of— how  Strengthened 682 


XX  TABLE    OF    CONTENTS. 

Sec.  421.  Want  of  Harmony  in  the  Decisions 683 

Sec.  422.  Burden  of  Proving  with  the  Defendant 684 

Sec.  423.  Prejudicial  Theories  Regarding  this  Defense 685 

Sec.  424.  Shifting  Nature  of  the  Burden  of  Proof .  686 

Sec.  425.  Not  Bound  to  Prove  beyond  Reasonable  Doubt 686 

Sec.  426.  Views  of  Mr.  Justice  Best 687 

Sec.  427.  The  General  Rule. 687 

Sec.  428.  Miscellaneous  Decisions _  688 

CHAPTER  L. 
COMPULSORY  EXAMINATION  OF  PERSON  OR  PAPER. 

Sec.  429.  Right  to  Examine  Generally  Denied  in  Criminal  Cases 691 

Sec.  430.  Views  of  Mr.  Justice  Balcom  in  the  McCoy  Case 690 

Sec.  431.  The  Authorities  Examined 692 

Sec.  432.  The  Rule  in  Civil  Actions  for  Damages 694 

Sec.  433.  Compulsory  Production  of  Paper 695 


PART  V. 

EVIDENCE  IN  ITS  RELATIONS  TO  SPECIFIC  OFFENSES. 
CHAPTER  LI. 

FALSE  PRETENSES. 

Sec.  434.  The  Offense  Denned 699 

Sec.  435.  What  must  be  Proved - 699 

Sec.  436.  MustRelate  to  anExisting  Fact --  703 

Sec.  437.  Intent  to  Defraud  must  be  Shown 708 

Sec.  438.  Something  of  Value  must  be  Obtained 711 

Sec.  439.  Similar  Frauds  may  also  be  Shown 711 

Sec.  440.  Evidence  of  Ability  to  Repay  the  Amount  Obtained  Immaterial  714 
Sec.  441.  Pretense  must  be  such  as  to  Mislead  Men  of  Ordinary  Prudence 

— Contradiction  in  the  Decisions . --  714 

Sec.  442.  Distinction  between  Larceny  and  False  Pretenses 716 

Sec.  443.  Examination  of  the  English  Rule 718 

Sec.  444.  Partial  Review  of  the  Authorities 719 

CHAPTER  LIE 

LARCENY. 

Sec.  445.  Larceny  Defined ..-. -- - 722 

Sec.  446.  Larceny  Includes  False  Pretenses  and  Embezzlement. 723 

Sec.  447.  Distinction  between  Larceny  and  False  Pretenses  still  Preserved  723 

Sec.  448.  Felonious  Intent  must  be  Shown 724 

Sec.  449.  Every  Larceny  must  Include  a  Trespass. 729 

Sec'.  450.  Corpus  Delicti  must  be  Shown 730 

Sec.  451.  What  may  be  Shown  when  Identity  is  in  Question 732 

Sec.  452.  Recent  Possession  of  Stolen  Property  may  be  Shown 733 

Sec.  453.  Evidence  of  other  Similar  Offenses 735 

Sec.  454.  Case  of  Reg.  v.  Thomas  Considered.. - 735 

Sec.  455.  Evidence  of  Value - --  736 

Sec.  456.  New  York  Rule  as  to  Name  of  Party  Defrauded 738 

Sec.  457.  Review  of  Miscellaneous  Authorities -  -  738 


TABLE    OF    CONTENTS.  XXI 

CHAPTEK  Lin. 

EMBEZZLEMENT,  ROBBERY  AND  BURGLARY. 

Sec.  458.  Embezzlement  Defined . _ 742 

Sec.  459.  What  must  be  Established  to  Warrant  Conviction 743 

Sec.  460.  Evidence  of  other  Fraudulent  Acts  Admissible 743 

Sec.  461.  The  Term  "Robbery"  Defined 744 

Sec.  462.  What  Evidence  is  Competent  to  Establish _  744 

Sec.  463.  Views  of  Professor  Greenleaf 746 

Sec.  464.  The  Terms  "Fear"  and  "Violence"  Considered 747 

Sec.  465.  Description  of  Property  Stolen  not  Required 748 

Sec.  466.  The  Terms  "Burglary"  and  "Break"  Defined 748 

Sec.  467.  What  the  State  must  Prove 749 

Sec.  468.  Presumptive  Evidence  of 750 

Sec.  469.  What  is  "Constructive  Breaking" 750 

Sec.  470.  Evidence  of  Former  Attempts 751 

Sec.  471.  Partial  Review  of  Late  Decisions 752 

CHAPTER  LIV. 

MURDER  AND  MANSLAUGHTER. 

Sec.  472.  Distinction  between  Murder  and  Manslaughter 754 

Sec.  473.  Degrees  of  the  Offense 75»i 

Sec.  474.  When  Justifiable 7-"j7 

Sec.  475.  Effect  and  Definition  of  Provocation 758 

Sec.  476.  Texas  Code  Provisions  on  the  Subject  of  Homicide 760 

Sec.  477.  When  Causing  Death  does  not  Amount  to  Homicide 762 

Sec.  478.  A  Celebrated  Case  Examined 762 

Sec.  479.  Intent  to  Kill  is  the  Essence  of  the  Crime 764 

Sec.  480.  How  Death  may  be  Accomplished 765 

Sec.  481.  Burden  of  Proving  Mitigating  Circumstances 765 

Sec.  482.  Evidence  of  Character  in  Cases  of 765 

Sec.  483.  Evidence  of  Death  by  Poisoning 766 

Sec.  484.  Evidence  of  Blood  Stains  in  Cases  of  Homicide 767 

Sec.  485.  Evidence  should  Convince  Jury  beyond  Reasonable  Doubt 770 

Sec.  486.  Note  on  Expert  Medical  Evidence. 771 

CHAPTER  LY. 

FORGERY. 

Sec.  487.  Forgery  Defined 772 

Sec.  488.  What  Constitutes  an  Intent  to  Defraud 774 

Sec.  489.  What  is  Making  a  False  Document 1 774 

Sec.  41)0.  What  Constitutes  Uttering 776 

Sec.  491.  What  Evidence  is  Pertinent 777 

Sec.  492.  Declarations  must  be  Considered  in  their  Entirety 778 

Sec.  493.  Burden  of  Proof  is  upon  Prosecution 779 

Sec.  494.  Other  Forgeries  may  be  Shown 779 

Sec.  495.  What  State  must  Show  in  Case  of  Bill,  Note,  Check,  etc.. 7S0 

Sec.  496.  Evidence  of  Handwriting 780 

Sec.  497.  Direct  Evidence  Seldom  Required --  784 

Sec.  498.  New  York  Code  Provisions.. 784 

CHAPTER  LVI. 

PERJURY. 

Sec.  499.  Term  Defined 788 

Sec.  500.  Two  Witnesses  Required  to  Prove 791 


XXU  TABLE    OF    CONTENTS. 

Sec.  501.  One  Witness  Insufficient 791 

Sec.  502.  Proof  Required  that  Defendant  was  on  Oath 792 

Sec.  503.  Impeaching  Evidence  always  Competent 793 

Sec.  504.  Testimony  of  an  Accomplice  Received  with  Suspicion 793 

Sec.  505.  Authorities  Considered 794 

CHAPTER  LVII. 

BIGAMY. 

Sec.  506.  What  Constitutes  the  Crime 799 

Sec.  507.  What  Evidence  is  Admissible 799 

Sec.  508.  The  Case  of  Reg.  v.  Lumley  Examined 800 

Sec.  509.  Rule  under  the  Common  Law 801 

Sec.  510.  Domestic  Marriage,  how  Proved 801 

Sec.  511.  Views  of  an  Eminent  Text-writer 804 

Sec.  512.  Actual  Marriage  must  be  Shown 804 

Sec.  513.  First  Marriage  may  be  Proved  by  Confession 805 

Sec.  514.  General  Reputation  and  Cohabitation  as  Proof  of  Marriage 806 

Sec.  515.  What  must  be  Shown  by  the  Prosecution 807 

Sec.  516.  Legal  Wife  not  a  Competent  Witness 810 

CHAPTER  LVIII. 

RAPE. 

Sec.  517.  The  Term  Defined 812 

Sec.  518.  Offense  must  be  "by  Force,  against  her  Will" 812 

Sec.  519.  What  must  be  Shown ....  816 

Sec.  520.  Reputation  of  the  Prosecutrix  for  Chastity 818 

Sec.  521.  Complaint  of  the  Outrage  may  be  Shown 825 

Sec.  522.  Caution  as  to  the  Admission  of  Uncorroborated  Testimony 830 

Sec.  523.   Utmost  Resistance  must  be  Shown 831 

Sec.  524.  Presumption  as  to  Infants * . 832 

Sec.  525.  Evidence  of  Previous  Offenses  or  Attempts 836 

Sec.  526.  Consent  Secured  by  Fraud 836 

CHAPTER  LIX. 
INCEST. 

Sec.  527.  The  Term  Denned 838 

Sec.  528.   Concurring  Assent  of  both  Parties  Necessary _.  838 

Sec.  529.  Consanguinity  may  be  Proved  by  Defendant 841 

Sec.  530.  Offense^may  be  Committed  with  Illegitimate  Daughter... 841 

Sec.  531.  Previous  Acts  of  Lasciviousness  may  be  Shown 842 

CHAPTER  LX. 

ADULTERY. 

Sec.  532.  The  Term  Defined 847 

Sec.  533.  Elements  of  the  Crime 847 

Sec.  534.  Presumptive  Evidence  may  be  Sufficient 847 

Sec.  535.  Positive  Proof  never  Required 848 

Sec.  536.  Views  of  Lord  Stowell  on  the  Subject 850 

Sec.  537.  Prior  Offenses  between  the  Parties  may  be  Shown 851 

Sec.  538.  Admissions  of  Marriage  Competent 852 

Sec.  539.  Adulterous  Disposition  may  be  Shown 852 

Sec.  540.  Birth  of  Child  as  Evidence  of 853 

Sec.  541.  Reputation  for  Chastity  may  be  Shown ---  854 


TABLE    OF    CONTENTS.  XX111 

CHAPTER  LXI. 

BASTARDY. 

•Sec.  542.  The  Term  "Bastard"  Defined 857 

Sec.  543.  Rule  as  to  Children  Born  in  Wedlock 857 

Sec.  544.  Unchaste  Conduct  of  the  Mother  may  be  Shown 858 

Sec.  545.  Evidence  of  "Non-access"  Competent 858 

Sec.  546.  Mother  of  Bastard  may  Prove  Illicit  Intercourse - 858 

Sec.  547.   When  Presumption  of  Legitimacy  will  Govern - 860 

Sec.  548.  Resemblance  as  a  Test  of  Parentage 860 

Sec.  549.  Charge  may  be  Sustained  by  Preponderance  of  Testimony 801 

CHAPTER  LXII. 
SEDUCTION  UNDER  PROMISE  OF  MARRIAGE. 

Sec.  550.  Term  Defined 867 

Sec.  551.  Nature  of  the  Proof .868 

Sec.  552.  Previous  Chastity  of  the  Woman  the  Main  Issue 870 

Sec.  553.  Distinction  between  Seduction  and  Rape - 874 

Sec.  554.  Presumption  as  to  Chastity,  how  Rebutted .  _  875 

Sec.  555.  Corroboration  Required  as  to  Promise  and  Intercourse s~7 

Sec.  556.  Time  not  Material 879 

CHAPTER  LXIII. 

CRIMINAL   LIBEL. 

Sec.  557.  The  Term  "Libel"  Defined. 881 

Sec.  558.  What  Constitutes  Criminal  Libel 882 

Sec.  559.  The  Term  "  Publication  "  Defined 883 

Sec.  560.  Publication,  how  Proved . 883 

Sec.  561.  What  the  Indictment  must  Show 884 

Sec.  562.  Outline  of  Plaintiff's  Proofs 885 

Sec.  563.  A  Restriction  upon  Plaintiff's  Evidence  Noted 887 

Sec.  564.  Evidence  in  Aggravation  of  Damages 887 

Sec.  565.  Malice  as  an  Element,  Presumptions  as  to 888 

Sec.  566.  Privileged  Communications. 889 

Sec.  567.  Rules  as  to  Justification. 891 

Sec.  568.  Repetition  of  a  Slander 892 

Sec.  569.  Malice,  how  Proved 892 

Sec.  570.  Evidence  of  Intent  Material , 893 

Sec.  571.  Accused  may  Swear  to  his  Intent 893 

Sec.  572.  Fair  Criticism  Allowed 894 

Sec.  573.  Rules  as  to  Editors  and  Reporters 896 

Sec.  574.  Miscellaneous  Authorities  on  the  Subject 896 

CHAPTER   LXIV. 

CRIMINAL  CONSPIRACY. 

Sec.  575.  What  Constitutes  Conspiracy 809 

Sec.  576.  One  Member  of  the  Confederacy  may  be  Convicted 901 

Sec.  577.  Proof  under  Indictment  Governed  by  Same  Rules  as  in  Other 

Cases 901 

Sec.  578.  Declarations  of  Coconspirators  Considered 901 

a.  New  York  Decisions  in  Reference  to 901 

b.  The  Wisconsin  Rule 902 

c.  Views  of  Mr.  Roscoe i»02 

d.  Other  Sustaining  Authorities (J03 


XXIV  TABLE    OF   CONTENTS. 

Sec.  579.  Defendant's  Guilt  must  be  Established  by  Evidence  of  bis  own 

Acts 904 

Sec.  580.  Rule  as  to  Criminal  Intent . ..  904 

Sec.  581.  When  Proof  of  Conspiracy  must  First  be  Shown 905 

Sec.  582.  What  may  be  Shown  in  Aggravation  of  the  Offense 905 

Sec.  583.  Rule  from  the  "  Star  Route    Case  as  to  Reasonable  Doubt 906 

CHAPTEE  LXV. 

EVIDENCE  IN  TRIALS  BY  COURTS-MARTIAL. 

Sec.  584.  Courts-martial  Entertain  a  Limited  Jurisdiction 908 

Sec.  585.  Rules  of  Evidence  Governing  . . 909 

Sec.  586.  Arbitrary  Nature  of  the  Rules 909 

Sec.  587.  Justified  only  by  Military  Necessity 910 

Sec.  588.  Review  of  the  Celebrated  Milligan  Case —  911 

Sec.  589.  Extract  from  De  Hart's  Military  Law 913 

Sec.  590.  Power  of  these  Courts  to  Originate  Evidence 914 

Sec.  591.  Functions  of  the  Judge  Advocate 914 

Sec.  592.  Evidence  in  Support  of  the  Averments  of  the  Charge 914 

Sec.  593.  Liberal  Rules  as  to  Defensive  Evidence 915 

Sec.  594.  Rule  as  to  Counsel 915 

Sec.  595.  Recalling  Witnesses 916 

Sec.  596.  Evidence  of  the  Record  on  Appeal 916 

Sec.  597.  Partial  Review  of  Miscellaneous  Authorities .  917 

CHAPTER  LXVI. 

INTERSTATE  RENDITION  AND  INTERNATIONAL  EXTRADI- 
TION. 

Sec.  598.  The  Term  Extradition  Defined 920 

Sec.  599.  New  York  Legislative  Enactments  Regarding 921 

Sec.  600.  Evidence  under  United  States  Revised  Statutes. .. 924 

Sec.  601.  Comments  upon  the  Constitutional  Provisions 928 

Sec.  602.  What  Justifies  the  Issuance  of  the  Warrant 928 

Sec.  603.  Rights  of  Party  Proceeded  Against... .. —  930 

Sec.  604.  Conduct  of  Proceedings 931 

Sec.  605.  Evidence  by  Deposition 932 

Sec.  606.  Hearing  on  Application  for 933 

Sec.  607.  Accused  must  be  Tried    for  the   Offense  for  which  he  was 

Extradited ...934 

a.  Distinction  in  Cases  of  Interstate  Rendition. _.  935 

Sec.  608.  Fugitive  may  be  Surrendered  for  any  Offense 938 

Sec.  609.  Evidence  as  Affected  by  Treaty  Stipulations  with  Foreign  States  939 

Sec.  610.  What  Evidence  will  Authorize  an  Arrest 940 

Sec.  611.  What  the  Affidavit  should  Disclose 942 

Sec.  612.  Evidence  in  Habeas  Corpus  Proceedings .-  943 


TABLE  OF  CASES. 


Aaron  v.  State,  37  Ala.  106 405 

Abbott  v.  People,  86  N.  Y.  460 321 

v.  State,  59  In d.  70 773 

Abernathy  v.  Abernathy,  8  Fla.  243 75 

Abernethy  v.  d >m.,  101  Pa.  328 582 

Abney  v.  Kingsland,  10  Ala.  355,  44  Am. 

Dec.  491 414 

Accident  Ins.  Co.  ot  N.  A.  v.  Bennett,  90 

Tenn    23f  i  25 

Acklen  v.  Hickman,~60  Ala.  3B8 '.'".'.'.'".    99 

Adae  v.  Zangs,  41  Iowa,  536. 104 

Adams  v.  Adams,  16  Pick.  254.. 08 

v.  Davidson,  10  N.  Y.  309 89 

v.  Field,  21  Vt.  256. 110,  116 

v.  Hannibal  &  St.  J.  K.  Co.,  74  Mo. 

556,  41  Am.  Hep.  333 108 

v.  Jones,  39  Ga.  479 22,  23 

v.  Keunedy,  90  Ind.  318 195 

v.  Robinsou,  65  Ala.  587 337 

v.  State,  67  Ala.  89 171,  173 

V.  State,  52  Ga.  565 404 

V.  State,  99  Ind.  244 616 

V.  State,  29  Ohio  St.  412 440 

v.  Wheeler,  97  Mass.  67. 373 

Adrian ce  v.  Arnot,  31  Mo.  471 319 

v.  Lagrave,  59  N.  Y.  110,  17  Am. 

Hep.  317 932 

.Etna  Ins.  Co.  v.  Weide,  76  U.  S.  9  Wall. 

677,  19  L.  ed.  810 98,101 

Ahitbol  v.  Beniditto,  2  Taunt.  401 172 

Ake  V.  State,  6  Tex.  App.  398,  32  Am. 

Rep.  586 430 

Albinr.  State,  63  Ind.  598 682 

Albrecht  v.  People,  78  111.  510 219 

Alderman  v.  People,  4  Mich.  414 518 

Alexander  v.  Byron,  2  Johns.  Cas.  318..  159 

V.  Dunn,  5  Ind.  122 258 

v.  Mt.  Sterling.  71  111.  366 481 

v.  People,  96  111.  96 26,425 

V.  State,  12  Tex.  540 526 

V.  State,  25  Tex.  App.  260,  8  Am.  St. 

Rep.  438 577,771 

Allay  v.  Hutchings,  2  Mood.  &  R.  358...  373 

AUbritton  v.  State  (Ala.)  Jan.  7. 1892 684 

Allen's  Case,  3  City  Hall  Rec.  118 707 

Allen  v.  Harrison,  30  Vt.  219 363 

v.  State,  87  Ala.  107... 228 

v.  State,  17  Tex.  App.  637 594 

Allison  v.  Cum.,  99  Pa.  32 202 

y.  People,  45  111.  37 861 

Alton  v.  Hope,  68  111.  168 10 

American  Ins.  Co.  v.  Butler,  70  Ind.  1..  195 
American  U.  Teleg.  Co.  v.  Daughtery, 

89  Ala.  191 ."91,  95 

Amidon  v.  Hosley,  54  Vt.  25. 363 

Anable  v.  Com.,  24  Gratt.  563 403,  708 

Anderson  v.  Cranmer,  11  W.  Va.  562 25 

v.  Parker,  6  Cal.  197 23 

V.  Home,  W.  &  O.  R.  Co.,  54  N.  Y. 

334 412,418,419 

V.  Root,  8  Smedes  &  M.  362 46 

r.  State,  104  Ind.  467,  5  Am.  Rep. 

601 139,140,  832 

V.  State,  41  Wis.  430 .193,  430,  «7 

v.  State,  43  Conn.  514,  21  Am.  Rep. 

669 241,003 

V.  State,  2  Wash.  183 2.53 

Audre  v.  State,  5  Iowa,  398,  68  Am.  Dec. 

708 854 


Andrews  v.  Dieterich,  14  Wend.  31 738 

v.  People,  60  111.  354 452 

v.  State,  2  Sneed,  550 104 

Angelo  v.  People,  90  111.2U9, 30  Am.  Rep. 

132 248 

Annesley  v.  Lord  Anglesea,  17  How.  St. 

Tr.  1430 560 

Anonymous,  Ambl.  252 57 

Anonymous,  17  Abb.  Pr.  48 69 

Anonymous,  5  Coke,  125a 882 

Anthony  v.  Smith,  4  Bosw.  503 159,  320 

v.  State,  1  Meigs,  265,  33  Am.  Dec. 

143 191,543 

Apothecaries  Co.  v.  Beotley,  Russ.  &  M. 

159 425 

Arcia  v.  State,  28  Tex.  App.  198 408 

Argo,  The,  1  Gall.  150 570 

Armitaire  r.  state.  13  Ind.  441 45 

Armour  v.  State.  63  Ala.  173 598 

Armory  v.  Delamirie,  1  Strange,  504 487 

Armstrong  r.  Lear,  33  U.  S.  8' Pet.  52,  8 

L.  ed.  863 53 

v.  People.  70  X.  Y.  38,  44 

...510,  867,  869,  870,  873,  874,  877,  880 

V.  State,  27  Fla.366. 676 

v.  Tait.  8  Ala.  035 198 

Arnold  v.  Macungie  Sav.  Bank,  71  Pa. 

2£7 70 

V.  State,  53  Ga.  574 807,  809 

v.  State,  23  Ind.  170 437 

Arthur  Armstrong's  Case,  1  Hale  P.  C. 

693.. 810 

Ashbury  v.  Sanders,  8  Cal.  02,  08  Am. 

Dec.  300 22 

Ashley  v.  Martin,  50  Ala.  537 70 

Ashwbrth  r.  Kittridge,  12  Cush.  193,  59 

Am.  Dec.  178 ....146,147,  149 

Astley  v.  Astley,  1  Hagg.  Eccl.  Rep.  719  854 
Atchison  v.  Morris,  11  Fed.  Rep.  582....  931 
Atchison,  T.  &  S.  F.  R.  Co.  v.  Beets,  10 

Colo.  431.. 53 

Atherf old  r.  Beard,  2  T.  R.  610 50 

Atkins  v.  State,  16  Ark.  568 328,  594 

Atkinson  v.  Anderson,  L.  R.  21  Ch.  Div. 

100 863 

v.  Dailey,  107  111.  117 198 

Atty.  Gen.  v.  Hitchcock,  1  Exch.  91....  333 

Atwill  v.  Mackintosh,  12(1  Mass.  177 891 

Atwood  v.  Impson,  20  N.  J.  Eq.  15U 363 

v.  Welton,  7  Conn.  70 358 

Augusta  v.  Windsor,  19  Me.  317 97 

Augustus  v.  Graves,  9  Barb.  596 137 

Aurora  v.  Cobb,  21  Ind.  492 332 

Austin  v.  State,  14  Ark.  555 ...332,  508 

v.  Thompson,  45  N.  H.  113 40 

Austine  v.  People,  51  111.  236 495,  490 

Avery  v.  State,  10  Tex.  App.  199 352 

Axtel  i).  Chase,  S3  Ind.  546 258 

Ayrault  v.  Chamberlain,  33  Barb.  229...  181 
Ayre  v.  Craven,  2  Ad.  &  El.  2 883 

B. 

Baalam  v.  State,  17  Ala.  433 209 

Babcock  v.  People,  13  Colo.  515 575,  584 

v.  People,  15  Hun, 347. _. 465 

Baccio  v.  People,  41  N.  Y.  205 

827,  828,834,835 

Bacon  v.  Parker,  12  Conn.  212 240 

v.  Williams.  13  Gray,  525 782 

Badger  v.  Badger,  88  N.  V.  547 810 


(x.W 


XXVI 


TABI.K    OF    CASKS. 


Bagley  v.  Cleveland  Roll.  M.  Co.,  21  Fed. 

Rep.  159  231 

Bagwell  v.  State,  56  Ga.  406 160 

Baier  v.  Berberieh,  85  Mo.  50 260 

Bailey  v.  Bailey,  25  Mich.  185 24 

V.  Com.,  82  Va.  107 2:58,  831 

v.  State,  26  Ga.  579,  80  Ga.  359.. 491,  615 

V.  State,  26  Ind.  422 628 

r.  State,  67  Mass.  333 a51 

Bainbridge  v.  State,  30  Ohio  St.  205 458 

Baird  r.  (iillett,  47  X.  V.  L86 412,  419 

Bakeman  v.  Hose,  14  Wend.  105, 18  Wend. 

146 376.824 

Baker  r.  Cum.  (Ky.)  Nov.  28, 1S91 348 

v.  Dessauer.  49  Ind.  2s 258 

v.  Gausin,  76  Ind.  317 127 

v.  Joseph,  16  Cal.  173 260 

t'.  Lyman,  53  Ga.  3  9 70 

V.  People,  105  111.452 208 

V.  State,  4  Ark.  56.... 327 

V.  State,  2  Ind.  App.  517 242 

V.  State,  29  Ohio  St.  184 740 

V.  State,  4  Tex.  App.  227 258 

v.  State,  47  Wis.  111.  80  Wis.  416.802,  902 
v.  United  States,  1  Pinney,  641.849,  854 
Baldwin  v.  Branch  Circuit  Judge,  48 

Mich. 525 931 

V.  State,  12  Mo.  223. 634,  636 

Bales  v.  State,  63  Ala.  30 149 

Ball  i\  Com.,  8  Leigh,  726 240 

V.  Evening  Post  Pub.  Co.,  38  Hun. 

15 _    69 

Baltimore  &  O.  R.  Co.  v.  State,  41  Md. 

268 373 

Bancroft  r.  Bancroft,  3  Swab.  &  T.  610.  68 
Bank  of  Com.  v.  Mudgett,  44  N.  Y.  514.  781 
Bank  of  Middlebury  v.  Rutland,  33  Vt. 

414 142 

Bank  of  Salina  v.  Henry,  2  Denio,  155.. 

296,301 

Bank  of   Utica  v.  Mersereau,  3  Barb. 

Ch.  528 299,  316 

Banks  v.  State,  72  Ala.  522 . .  _ 546 

Barber  v-  Bennett,  58  Vt.  476,  56  Am. 

Rep.  565 102 

Barker,  Ex  parte,  11  Crim.  L.  Mag.  632.  930 

Barkers.  Kuhn,  38  Iowa,  392 352 

v.  State,  48  Ind.  163 139 

Barnards  r.  State,  88  Tenn.  229 571 

Barnes  V.  People,  18  111.  52 171,  172 

v.  State,  88  Ala.  204 584 

v.  State,  36  Tex.  356,  41  Tex.  342. . . 

496,  546,  559 

Barnctt  v.  State,  S3  Ala.  40 827 

Barney  v.  People,  22  111.  160. 831 

v.  State,  12  Smedes  &  M.  68 203,  255 

Baron  v.  People,  1  Park.  Crim.  Rep.  246  404 

Barons  v.  Brown,  25  Kan.  410 90,  92 

Barrett  v.  Carter,  3  Lans.  68 159 

Barron  v.  Baltimore,  32  D.  S.  7  Pet.  247, 

8L.ed.674. 383 

Barrows  v.  Carpenter,  11  Cush.  456 884 

Bartholomew  v.  Clark,  1  Conn. 472 240 

v.  People,  104  111.  601,  44  Am.  Rep. 

97 225 

Bartlett  v.  Beardmore,  74  Wis.  485 258 

Barton  v.  Kane,  17  Wis.  38 258 

v.  State,  29  Ark.  68.. 733 

v.  State.  12  Neb.  260 255 

v.  State.  18  Ohio.  221 ..77,  207,  327 

Bartow  v.  People,  78  N.  Y.  377 743 

Bassell  v.  Elmore,  48  X.  Y.  561  886 

Basset t   V.  Spofford,  45  X.  Y.  388,  6  Am. 

Rep.  101 724 

Batdorff  v.  Farmers  Xat.  Bank,  61  Pa. 

179 260 

Bate  r.  Kinsey,  1  Cromp.  M.  &  B.  41 221 

}  ates  r.  United  States,  10  Fed.  Rep.  92..  525 

Batten  v.  State.  80  Ind.  394 4:56 

Batturs  r.  Sellers,  5  Harr.  &  J.  119 502 

Baumer  v.  State,  49  Ind.  544, 19  Am.  Rep. 

691 839 


Bauskett  v.  Keitt.  22  S.  C.  187 

Baxter  v.  Abbott,  7  Gray,  71 

Baylest).  State,  63  A  la.  30 

Beagles  v.  Sefton,  7  Ind.  496 

Beal  v.  Nichols,  2  Gray,  262 

Beall  v.  State,  15  Ind.  378 

Bean  v.  Briggs,  4  Iowa,  464 

Beasley  r.  State,  59  Ala.  20 

Beattic  v.  Hilliard,  55  N.  H.  428 

Beauchamp  v.  State,  6  Blackf.  299... 441, 

Beaulieu  v.  Portland  Co.,  48  Me.  291 

Beaver  v.  Tavlor,  68  U.  S.  1  Wall.  637,  17 

L.  ed.  601 

Beavers  v.  State,  58  Ind.  530 

Beck  v.  State,  20  Ohio  St.  228 

Becker  v.  Koch,  104  X.  Y.  394 

Bedell  v.  Foss.  50  Vt.  94 

Bedford  v.  State,  5  Humph.  553 

Bed  good  v.  State,  115  Ind.  275 

Bedingneld's  Case,  14  Am.  L.  Rev.  817, 

15  Am.  L.  Rev.  71 

Beers  v.  Jackmau,  103  Ma?3.  192 

Beery  v.  United  States,  2  Colo.  186 

Beggarly  v.  State.  8  Baxt.  520 

Behrendt,  R<\  23  Blatchf.  40 

Belknap  v.  Sealey,  14  N.  Y.  143,  67  Am. 

Dec.  120 

Bell  v.  Brewster,  44  Ohio  St.  690 

v.  Rinner.  16  Ohio  St.  45 

v.  State,  66  Miss.  192 

Bellefontaine  B.  Co.  v.  Hunter,  33  Ind. 

354,  5  Am.  Bep.  201 

Bolton  v.  Fisher,  44  111.  32..  

Bemis  v.  Kyle,  5  Abb.  Pr.  N.  S.  252 

Benedict!).  Williams,  48  Hun,  123 

Bennett  ii.  State,  8  Humph.  118 

V.  State,  24  Tex.  App.  73 

Benson  v.  McMahon,  127  i'.  S.  457,  32  L. 

ed.  234 

Benstine  r.  State,  2  Lea,  169. 31  Am.  Rep. 

593.. 606,826, 

Benton  v.  Starr,  58  Conn.  285 

Berckmans  v.  Berckmans,  16  XT.  J.  Eq. 

122.... 

Bergen  V.   People,   17  111.  426,  65  Am. 

Dec.  672 ._ 

Bergin,  Re,  31  Wis.  386 

Bergin  v.  State,  31  Ohio  St.  Ill 635, 

Berkey  v.  Judd,  22  Minn.  287 

Berlinger  v.  State,  6  Tex.  App.  181 

Berry  v.  People,  1  X.  Y.  Crim.  Rep.  57.. 

V.  State,  63  Ala.  126 

v.  State,  10Ga.511 

v.  State,   31  Ohio  St.  219,  27  Am. 

Rep.  506 

Betts  B.  Jacks,  a),  6  Wend.  181 

Bickham  v.  Smith,  62  Pa.  45 

Bickley  v.  Com.,  2  J.  J.  Marsh.  572... 264, 
Bielschofsky  v.  People,  60  X.  Y.  616 

462,700, 

Bigelow  r.  Hall,  91  X.  Y.  145 

Biggs  v.  State,  29  Ga.  723,  76  Am.  Dec. 

6:50.. 

Bigler  v.  Reyher,  43  Ind.  112... 

Bilberry  v.  Mobley,  21  Ala.  277 

Biles  v.  Com.,  32  Pa.  529,  75  Am.  Dec.  568 

Bintield  v.  State,  15  Xeb.  484 

Binney  v.  Russell,  109  Mass.  55  . . . 
Binns  v.  State,  46  Ind.  311,  66  Ind.  432 

...16,  448,  533,  536, 

Bird  v.  Miller,  1  McMull.  L.  123 

Birtwhistle  v.  Yardill,  7  Clark  &  F.895  . 

Biebey  v.  Shaw,  12  X.  Y.  67 

Biseoe  v.  State,  67  Md.  6  .. 
Bishop  v.  State,  ft  Ga.121... 
Black  r.  Black,  30  X.  .7.  Eq.  228 

v.  State,  57  Ind.  109.... 

v.  State,  1  Tex.  App.  368  . .   .      352, 
Blackburn  v.  Com.,  12  Bush,  181  .... 

v.  Crawford,  70  U.  S.  3  Wall.  175, 18 

L.  ed.186 

v.  State,  23  Ohio  St.  146 468, 


373 

637 
149 
258 
325 
741 

53 
710 

91 
448 
230 

80 
160 
252 
373 

69 
240 
313 

K5 

853 
499 
499 
932 

248 
116 

289 
580 

108 
172 
370 
723 
607 
371 

924 

834 


850 

355 
9 
640 
4.55 
404 
511 
255 
503 

727 

16 

260 

267 

714 

106 

765 
352 
414 
778 
594 
91 

538 
116 
863 
893 
504 
160 
850 
174 
559 
371 

43 

673 


TABLE    OF    CASES. 


xxvu 


Blackincrton  v.  Johnson,  126  Mass.  21...  325 

Blacklawsi;.  Milne,  82  HI.  505 864 

Blackman  v.  State,  78  Ga.  596 183 

Blackwell  v.  State,  67  Ga.  76, 44  Am.  Rep. 

717 694 

Blair  v.  Turtle,  1  McCrary,  372 931 

Blake,!'.  Blake.  70  111.  618  850 

r.  People,  73  N.  Y.  586 588 

v.  Buss,  33  Me.  360. 46 

v.  Sawin,  10  Allen,  340 436 

v.  State,  3  Tex.  App.  581 572 

Blakely  v.  Frazier,  20  S.  C.  144 70 

Blakeslee  v.  Scott,  37  Pbila.  Leg.  Int.  474  232 

Bland  i;.  Warren,  65  N.  C.  372 98 

Blankenship  v.  Douglas,  26  Tex.  230....  189 

v.  State,  55  Ark.  244 194,  688 

Blige  v.  State,  20  Fla.  742 165 

Blizzard  r.  Applegate,  77  Ind.  516 414 

Bloch  v.  Price,  24  Mo.  App.  14 455 

Blocker  r.  State,  9  Tex.  App.  279... 440 

Blodgett  Paper  Co.  v.  Palmer,  41  N.  H. 

403... 455 

Bloomer  v.  People,  1  Abb.  App.  Dec.  146  744 

v.  People,  3  Keyes,  9 746 

v.  State,  48  Md.  521 67 

Bloomington  v.  Sbrock,  110  111.  219,  51 

Am.  Rep.  679 145 

Bluck  v.  Tborne,  4  Campb.  192 83 

Blunt  r.  Little,  3  Mason,  102... 442 

Blytbe  v.  State,  47  Obio  St.  234 178 

Boddie  v.  State.  52  Ala.  395 827 

Boddy  v.  Boddy.  30  L.  J.  Mat.  23 851 

Bode  v.  State,  6  Tex.  App.  424. 455 

Bogardus  v.  Trinity  Church,  4  Paige, 

198 865 

Bogart,  Be,  2  Sawy.  396 908,  917 

Boggs  v.  State,  8  Ind.  463 260 

Bohannon  v.  Com.,  8  Bush,  481. 573 

Bnk  r.  Vincent,  12  Abb.  Pr.  137. 370 

Bond  i\  Poutiac,  O.  &  P.  A.  R.  Co.,  62 

Mich.  643 334 

v.  State,  21  Fla.  738 770 

Bone  v.  State,  86  Ga.  108 86 

Bonfanti  c.  State,  2  Minn.  123 636 

Bonker  v.  People,  37  Mich.  4 452 

Bonner  v.  State.  55  Ala.  242.... 499 

Bonner  c,  Glattfeldt,  120  111.  166 106 

Bonsall  v.  State,  35  Ind.  460 77,  208 

Booth  v.  Hart,  43  Conn.  480 _ 859 

Bosley  v.  Chesapeake  Ins.  Co.,  3  Gill  & 

J.  450  198 

Bostick  v.  State,  3  Huniph.  344.".".".""."""  379 
Boswell  v.  Com.,  20  Gratt.  860 

193.  444,  621,  635,  636,  638,  640 

v.  State,  63  Ala.  307.  35  Am.  Hep. 

20 430,635,  638.  659,  662,  677 

Bottoralev  v.  United  States,  1  Story,  135. 

209,  210.  212,  459,  700,  714 

Bounds  v.  Schwab,  5  Sneed,  594 366 

Bow  v.  Allenstown,  34  N.  H.  365,  69  Am. 

Dec.  489 16 

Bowell  v.  State,  63  Ala.  307,  35  Am.  Rep. 

20 771 

Bowen  v.  State,  9  Baxt.  45, 40  Am.  Rep.  71  716 

v.  Stare,  3  Tex.  App.  623 136 

Bowers  v.  People,  74  111.  418 292 

v.  State,  29  Ohio  St.  542 316 

Bowler  v.  State,  41  Miss.  570 405 

Bowler's  Case,  67  Hans.  Pari.  Deb.  480..  674 
Bowles  v.  Bingham,  2  Muuf.  442,  5  Am. 

Dec.  497 857 

Boyce  v.  People,  55  N.  Y.  644 

....510,  867,  868,  870,  873,  874,  877,  879 

Boyd  v.  Com.,  77  Va.  52 400 

v.  United  States,  116  U.  S.  616.  29  L. 

ed.  746 58,310,475,096 

Boyer  v.  State,  16  Ind.  451... 616 

Boyle  v.  Kreitzer,  46  Pa.  465 363 

v.  Levings,  2&  111.  314 261 

V.  State,  105  Ind.  469,  55  Am.  Rep. 

218 ....197,  346, 

348,  443,  528,  531,   533,  535,  537,  538 


Boynton  v.  Trumbull,  45  N.  H.  40S 206 

Bradford  v.  Bush,  10  Ala.  386 370 

v.  State,  15  Ind.  347 206 

Bradlaugh  v.  Keg.,  L.  R.  3  Q.  B.  607  .400,  743 

Bradley  v.  Bradley,  4  Whart.  173 23 

v.  Heath,  12  Pick.  163,  22  Am.  Dec. 

418 890 

V.  State,  31  Ind.  492 26.  141,  440,  662 

Bradshaw  v.  Combs,  102  111.428 320 

Brady  v.  Com.,  11  Bush.  282 440 

Bragg  v.  Colwell,  19  Ohio  St.  407 114 

Bramlette  v.  State,  21  Tex.  App.  611,  57 

Am.  Rep.  622. 439 

Brandon  v.  People,  42  N.  Y.  265 a51 

Brant  v.  Fowler,  7  Cow.  562 253 

Braswell  v.  Star.-.  2  Crim.  L.  Mag.  32....  423 

Brauer  c.  State,  25  Wis.  413... 817 

Bray  v.  State,  41  Tex.  560 440 

Breed  v.  First  Nat.  Bank,  6  Colo.  235  . 

79  83  89  92  94 
Breedlove"i\  Bundy," 96  ind!  319. ..'...'  .158 
Breen  v.  People,    4  Park.  Crim.  Rep. 

380 194 

Bressler  v.  People,  117  111.422 440 

Briceland  v.  Com..  74  Pa.  469 685 

Brierly  v.  Davol  Mills,  128  Mass.  291 70 

Briflitt  v.  State.  58  Wis.  39 13 

Brinkley  v.  State,  58  Ga.  298 678 

Brister  u.  State,  26  Ala.  129 499 

Broad  v.  Pitt,  3  Car.&P.518 .  318 

Brock  r.  State,  26  Ala.  105 207 

Broad  head  r.  Wlltse,  :>5  Iowa,  42!) 147 

Brogy  v.  Com.,  10  Gratt.  722 355 

Brolley  v.  Lapham,  13  Gray.  294 370 

Bromage  v.  Prosser,  4  Barn.  &  C.  247.442,  888 

Bronner  v.  Loomis,  14  Hud,  341 _.  115 

Brooke  v.  Winters.  39  Md.  505 70 

Brooklyn  Oil  Works  r.  Brown,  38  How. 

Pr.  451 165,  166 

Brooks  r.  Dutcher,  22  Neb.  644 258 

v.  State,  90  Ind.  428 139 

v.  Weeks.  21  Mass.  4313 374 

Brothertou  v.  People,  75  N.  Y.  159 ,. 

422. 426. 528, 537,  63C 

Brown,  Ex  parte,  28  Fed.  Rep.  653 943 

Brown,  Rr,  i  N.  Y.  Crim.  Rep.  576 929 

Brown  v.  Brown,  L.  R.  1  Prob.  &  Diw  46, 

270 68 

V.  Burrus,8  Mo.  26 325 

r.  Com..  86  Va.  466 141 

r.  Com.,  73  Pa.  321,  13  Am.  Rep.  740 

203,  255, 380,  382, 384.  387,  528 

v.  Com.,  76  Pa.  319 442,483 

v.  Com.,  78  Pa.  122 673,674 

r.  European  &  N.  A.  R.  Co.,  58  Me. 

384 230,233 

v.  Giles,  1  Car.  &  P.  118,  2  Phil.  Ey. 

500 326 

v.  LaCrosse,  C.  G.  L.  &  C.  Co.,  21 

Wis.  51 252 

v.  Marshall,  47    Mich.  576,  41  Am. 

Rep.  728 156 

v.  Mooers,  6  G  ray .  451 373 

r.  Osgood,  25  Me.  505 370 

v.  People,  16  Hun,  535 708,  721 

v.  People,  36  Mich.  203.. 813 

v.  Piper,  91  U.  S.  41.  23  L.  ed.  201. .  12, 13 

V.  State.24  Ark.  620 160,  164,  276 

V.  State,  2  Tex.  App.  115 289 

v.  State,  18  Ohio  St.  496 292 

v.  State,  32  Miss.  4:33 4«7 

V.  State,  55  Ark.  593 576 

V.  State,  83  Ala.  33. 585 

v.  State,  1  Tex.  App.  155 732 

V.  State,  52  Ala.  338 805,  807,  809 

V.  Swineford,  44  Wis.  282,28  Am. 

Rep.  582 248 

U.Torrey,24  Barb.  583 25 

V.  Wood,  19  Mo.  475 37" 

Brown's  Case,  3  City  Hall  Rec.  151  ..  371 
Browne  o.  Gisborne,  2  Dowl.  N.  S.  963  274 
Brugh  v.  Shanks,  5  Leigh,  598 $42 


XXV111 


TABLE    OF    CASES. 


Brumley  v.  State,  21  Tex.  App.  222,  57 

Am.  Rep.  612 125 

Bryan  v.  State,  74  Ga.  393 688 

i?uford  i).  Com.,  14  B.  Mon.  24 428 

Bulkeley  v.  Keteltas,  4  Sandf.  450, 6  N.  Y. 

384 194 

Bullard  v.  Pearsall,  53  N.  Y.-230 373,  758 

Bulliner  v.  People,  95  111.  394 225,  228,  289 

Bullock  v.  Bullock,  122  Mass.  3 864 

v.  Koon,  9Cow.30 789 

Bunch  v.  Hurst,  3  Desaus.  273,  5  Am. 

Dec.  551 44 

Bundy  v.  Cunningham,  107  Ind.  360 259 

v.  Hyde,  50  N.  H.  116 266 

Burchet  v.  Burchet,  Wright  (Ohio)  161.  849 

Burden  v.  Pratt,  1  Tbomp.  &  C.  554 a39 

Burdickt).  Hunt, 43 Ind. 381 

..116,204,256,277,410 

Burgamy  v.  State,  4  Tex.  App.  572 173 

Burger  v.  White, 2 Bos w. 92.... 159 

Burgess  v.  Bennett,  20  Week.  Rep.  720...  104 

V.Com.,  2  Va.  Cas.  488 448 

Burke  v.  Witherbee,  98  N.  Y.  562 231 

Burkhalter  v.  Edwards,  16  Ga.593, 60  Am. 

Dec.  744 370,373 

Burley  v.  State,  1  Neb.  385 164 

Burnham  v.  Hatfield,  5  Blackf.  21 204 

Burns  v.  State.  49  Ala.  370 578,580 

Burnswick  v.  Moore,  74  Ga.  409 260 

Burrell  v.  State,  18  Tex.  713 559 

Burrough  c.  Martin,  2  Campb.  112 97 

Burrow  v.  State,  12  Ark.  65 708 

Burrows  v.  Unwin.  3  Car.  &  P.  310 253 

Burt  v.  Winona  &  St.  P.  R.  Co.,  31  Minn. 

472 90 

Burton  v.  Driggs,  87  U.  S.  20  Wall.  134,  22 

L.  ed.302 91 

V.  March,  51  N.  C.  409 469 

v.  Payne,  2  Car.  &  P.  520... 94 

v.  Plummer,  2  Ad.  &  El.  341.. .58,  97.  99 

Bush  v.  Prosser,  11  N.  Y.347 893 

Bussard  v.  Levering,  19  U.  S.  6  Wheat. 

102.  5  L.  ed.  215 79 

Bussom  v.  Forsvth,  32  N.  J.  Eq.  2S5 863 

Butler  v.  State,  3  McCord.  L.  383 168 

v.  Watkins,  80  U.  S.  13  Wall.  457,  20 

L.ed.629 70 

Byam  v.  Collins,  2  L.  R.  A.  129,  111  N.  Y. 

143. 890,  891 

Byard  v.  Harkrider,  108  Ind.  376 259 

Byrd  v.  State,  57  Miss.  243,  34  Am.  Rep. 

440 281,412 

Byrnes  v.  Byrnes,  102  N.  Y.  5 798 


Caballero's  Succession,  24  La.  Ann.  573.  863 

Cady  n.  State,  44  Miss.  332 495 

Cahen  v.  Continental  L.  Ins.  Co.,  69  N. 

Y.  308. 281 

Cain  v.  State.  18  Tex.  387 493 

Caldwell  r.  Bowen,  80  Mich.  382.  _.  105 

v.  New  Jersey  S.  B.  Co.,  47  N.  Y. 

282 157,  158,  320 

v.  State,  14  Tex.  App.  171 404 

Calhoun  v.  O'Neal,  53  111.  354.. 237 

v.  Thompson,  56  Ala.  166,  28  Am. 

Hep.  754 298 

Calkins  V.  State,  14  Ohio  St.  222 114 

v.   State,  18  Ohio  St.  366,   98  Am. 

Dec.  121 219 

Callahan  v.  State,  63  Ind.  198, 30  Am.  Rep. 

211 880 

Callan  v.  Gaylord,  3  Watts.  321 94 

v.  Wilson,  127  U.  S.  540, 32  L.  ed.  223  10 
Callaway  v.  McMillian,  11  Heisk.  557....  98 
Calvert  v,  Fitzgerald,  Litt.  Sel.  Cas.  388  108 
Camden  v.  Doremus,  44  U.  S.  3  How.  515, 

11  L.  ed.  705 260 

Cameron  v.  State,  14  Ala.  546,  48  Am. 

Dec.  Ill 805,807,  809,840 


Campbell  v.  Com.,  84  Pa.  187.508,  524,  525,  893 

v.  Com.,  2  Va.  Cas.  314 521 

v.  People,  16  111.  17,  61  Am.  Dec.  49  569 
v.  People,  109  111.  565,  50  Am.  Rep. 

621 614 

v.  Spottiswoode,  32  L.  J.  Q.  B.  185.  894 

v.  State,  23  Ala.  44 288,  373 

v.  State,  11  Ga.  £53 528 

v.  State,  38  Ark.  498 529 

V.  State,  109  111.  565 615 

Cancemi  v.  People.  16  N.  Y.  501.  .600,  601,  607 

Cannady  v.  Lvnch,  27  Minn.  435 288 

Cannon,  Be,  47  Mich.  482 932 

Carico  v.  Com.,  7  Bush,  124 573,  586 

Carnes  v.  Piatt,  15  Abb.  Pr.  N.  S.  338....  414 

Carney  v.  State,  79  Ala.  14 320 

v.  State,  118  Ind.  525 831 

Carpenter  v.  Groff,  5  Serg.  &  R.  162 354 

v.  Nixon,  5  Hill,  260 280 

v.  People,  8  Barb.  603 820,  867 

V.  Ward,  30  N.  Y.  243 342,370 

Carrn.  Gale,  3  Woodb.  &  M.  38 46 

v.  State,  14  Ga.  358 579 

v.  State,  23  Neb.  749... 582 

Carroll  v.  Benicia,  40  Cal.  390 260 

v.  Com.,  84  Pa.  107.... 507 

D.Paul,  16  Mo.  241 189- 

v.  People,  136  111.  463 470 

v.  Quynn,  13  Md.  379 476,  511 

v.  State,  23  Ala.  28 573,  579 

Carson  v.  State,  50  Ala.  134 598,  601 

Carter  v.  Bennett,  4  Fla.  284 260= 

V.  Carter,  62  111.  439,  449 850 

v.  Ford  Plate  Glass  Co.,  85  Ind.  189  206 

v.  People,  2  Hill,  317 539 

V.  State,  2  Ind.  617 147 

v.  State,  46  Ga.  637 243 

v.  State,  63  Ala.  52 291 

v.  State,  82  Ala.  13 585 

v.  State,  12  Tex.  500,  62  Am.  Dec. 

539  635 

v.  St  a  te,"  56  Ga."  463 """""""""  640 

Cartery's  Estate,  56  Cal.  470. 110 

Carver  v.  Carver,  97  Ind.  497 195 

Gary  v.  Hotailing,  1  Hill,  311, 37  Am.  Dec. 

323 420,462,711 

v.  White,  59  N.  Y.  339 317 

Casat  v.  State,  40  Ark.  511 575 

Case  v.  People,  76  N.  Y.  242 20 

v.  Perew,  46  Hun,  57 13,  105 

Casey  v.  People.  31  Hun,  158.. 426,642 

v.  State,  20  Neb.  138 771 

Cass  v.  Bellows,  31  N.  H.  501,  64  Am. 

Dec.  347 97 

Castle  v.  State,  75  Ind.  146 436. 

Castleman  v.  Sherry,  42  Tex.  59 192 

Castro  v.  lilies,  22  Tex.  5U3,  73  Am.  Dec. 

277 189 

Catiin  v.  Underbill,  4  McLean,  199 101 

Cato  v.  State,  9  Fla.  163 813 

Caujolle  v.  Ferrie,  20  Barb.  177 137,  864 

Caverno  v.  Jones,  61  N.  H.  653 576 

Cawdrv  v.  Higlev,  Cro.  Car.  270 883 

Cavford's  Case,  7  Me.  57 805,  807,  809,  840 

Cesure  v.  State,  1  Tex.  App.  19 208 

Chaddoek  o.  Briggs,  13  Mass.  24S,  7  Am. 

Dec.  137 882,883 

Chaffee  v.  Soldan.  5  Mich.  242 69 

v.  United  States,  85  U.  S.  18  Wall. 

516,  21  L.  ed.  908 98 

Chahoon  v.  Com.,  21  Gratt.  822 316 

Chamberlain  v.  People,  23  N.  Y.  85,  80 

Am.  Dec.  255.. 75 

V.  Smith,  1  Mo.  482 230 

D.Vance,  51  Cal.  84 415 

V.  Wilson,  12  Vt.  491. .  .296,  297,  300,  301 

Chambers  v.  McGiveron,  33  Mo.  202 230 

V.  People,  105  111.  409 225,  346 

v.  People,  5  1)1.355 324 

Champ  v.  Com.,  2  Met.  (Ky.)  17 371,  374 

Chance  v.  Indianapolis  &  W.  G.  R.  Co., 

32  Ind.  472 116 


TABLE    OF    CASES. 


XXIX 


Chandler  v.  Le  Barron,  45  Me.  536.  ...115, 118 

V.  State,  25  Fla.  728 408 

Chapin  v.  Lapham.  20  Pick.  467 99 

Chaplin  v.  Hartshorne,  6  Conn.  44 859 

Chapman  v.  Brooks,  31  N.  Y.  75 342,  370 

15.  Erie  K.  Co.,  55  N.  Y.  579 192 

v.  White,  8  Ves.  Jr.  35 789 

Chappel  v.  State,  7  Coldw.  92 686 

Chappell  it.  Smith,  17  Ga.  68 281 

v.  State,  52  Ga.  359 404 

Charles  15.  Patch,  87  Mo.  450 230,  231 

v.  State.ll  Ark.  389 813 

Charlton  v.  Unis,  4  Gratt.  58 363 

Charon  v.  Geo.  W.  Robv  Lumber  Co.,  66 

Mich.  68 231 

Chaser.  Breed,  5  Gray,  443 238 

v.  People,  40111.a52 

252,  635,  036,  639,  645, 662 

Chase  v.  State,  20  N.  J.  L.  218 .203,  255 

Cheever  v.  Congdon,  34  Mich.  296 27 

Cheney  15.  Arnold,  18  Barb.  343 320,  864 

Chesley  v.  Brown,  11  Me.  146. 16 

Chester  v.  State,  1  Tex.  App.  702 292 

Chestnut  v.  Chestnut.  88  111.  548. 850 

Chicago  v.  Greer.  76  U.  S.  9  Wall.  726,  19 

L.  ed.  769 81 

Chicago  &  E.   I.  R.  Co.  r.  Holland,  122 

111.  4(51. 259 

Chicago  &  N.  W.  R.  Co.  15.  Fillmore,  57 

111.  266 108 

Chicago,  B.  &  Q.  R.  Co.  v.  Riddle.  60  111. 

535 108 

Childs  v.  State,  55  Ala.  25 . . 374,  610 

Chiniquy  v.  Catholic   Bishop  'of  Chi- 
cago, 41  111.148 172 

Chittenden  v.  Evans,  41  111.  253 225 

Choice  v.  State,  31  Ga.  424 621,  626 

Chrisman  v.  Gregory,  4  B.  Mon.  474 191 

Chubb  v.  Flannagan,  6  Car.  &  P.  431....  884 
Chubbuck  v.  Cleveland,  37  Minn.  466  ...  932 
Church  v.  Hubbart,  6  U.  S.  2  (/ranch, 

187,  2  L.  ed.  249. 55 

15.  Milwaukee,  31  Wis.  512 123 

Chute  v.  State,  19  Minn.  271 104 

Cicely  v.  State,  13  Smedes  &  M.  21  12 440 

Citizens  State  Bank  v.  Adams,  91  Ind. 

280 258 

City  Bank  of  Brooklyn  v.  Dearborn,  20 

N.  V.246... 245 

Claeknerv.  State,  33  Ind.  412 734 

Clapp  15.  Devlin,  3  Jones  &  S.  170 886 

Clare  v.  People,  9  Colo.  123. 551,  552 

v.  State,  30  Md.  164 203 

Clark,  Re,  9  Wend,  212 10 

Clark  i\  Com.,  123  Pa.  55S 202 

D.  Dillon,  97  N.  Y.  370 885 

v.  Fletcher.  1  A  lien,  53 46 

v.  Hannibal  &  St.  J.  R.  Co.,  36  Mo. 

202 231 

v.  Jones,  87  Ala,  474 346 

v.  Molyneaux,  L.  R.  3  Q.  B.  Div. 

247 894 

v.  People,  2  Hun,  520 546 

15.  Rhodes,  2  II eisk.  206 219 

U.State,  4  Humph.  254 164 

v.  State,  12  Ohio,  483.  40  Am.  Dec. 

481 432,636 

15.  State,  8  Humph.  671 448 

15.  State,  8  Tex.  App.  a50 635 

15.  State,  30  Tex.  App.  402...    .  748 

15.  Vorce,  19  Wend.  232 215 

Clark  Civil  Twp.  v.  Brookshire,  114  Ind. 

437  259 

Clarke  v.  Dutcher,9  Cow."67i"I"II™    18 

v.  Reese,  35Cal.89 361 

15.  State,  87  Ala.  71 347.  349 

15.  State,  78  Ala.  474 .347,  349,350 

Clary  r.  State,  33  Ark.  561.... ...746,  753 

Clayea  v.  Fen-is,  10  Vt.  112 155, 156 

Clayton  15.  State,  100  Ind.  204 206 

Clear  v.  Reasor,  29  [owa,  327 850 

Clem  v.  State,  33Ind.  418 ..399,  904 


Clemens  v.  Patton,  9  Port.  (Ala.i  289....    98 

Clements  v.  State,  21  Tex.  App.  258 173 

Cleveland  v.  Newson,  45  Mich.  62 529 

v.  State,  86  Ala.  2 585 

Clifford  v.  Brooke,  13  Ves.  Jr.  134 797 

15.  Richardson,  18  Vt.  620 481 

Clifton  15.  United  States,  45  U.  S.  4  How. 

242,  11  L.  ed.  957 41,221 

Cline  v.  State,  43  Ohio  St.  332 621 

15.  State,  43  Tex.  494 708 

Clinton  v.  Englebrecht.SOU.  S.  13  Wall. 

434,  20  L.  ed.  659 203 

Clinton  v.  McKenzie,  5  Strobh.  L.  36....  326 

Close  v.  Sam m,  27  Iowa,  503 180 

Cobbett,  Ex  parte,  4  Jur.  N.  S.  145 274 

Coble  15.  State,  31  Ohio  St.  100 208- 

Coburnu.  Odeil,  30  N.  H.  540 296,301 

Cocheco  Mfg.  Co.  v.  Stratford,  51  N.  H. 

4*1 737 

Cochran  v.  State,  7  Humph.  544 239 

Codding  15.  Wood,  112  Pa.  371 231 

Codrington  v.  Codrington,  3  Swab.  &  T. 

368 68 

Coffee  v.  State,  3  Yerg.  283,  24  Am.  Dec. 

570  191 

15.  State,  25  Fla.  501 489,  494 

Colli n  r.  Gephart,  18  Iowa,  256 253 

15.  Phoenix  Ins.  Co.,  15  Pick.  291 ...  240 

».  Vincent,  12  Cush.  98 99 

Cokelvfl.  State,  4  Iowa,  479 408 

Coker  r.  State, 20  Ark.  53 206,594 

Colbath  r.  State,  2  Tex.  App.  391...  .193,  444 

Colbert  15.  State.  1  Tex.  App.  314 715 

Cole  15.  Com.,  5  Gratt.  696. 208,327 

v.  Hebb,  7  Gill  &  J.  20 233 

u.  People,  2  Lans.  370 338 

Cole's  Trial,  7  Abb.  Pr.  N.  S.  321.637  660,677 

Colee  15.  State,  75  Ind.  511 481 

Coleman  v.  t  torn.,  25  Gratt.  865 288,  289 

v.  Com.,  84Va.  1 819 

V.  People,  55  N.  Y.  81,  58  N.  Y.  555 

66,77, 

126,  197,  2ii7,  211,    328,  418,  712,  780 

V.  State,  44  Tex.  109 515 

15.  State,  59  Miss.  484 606 

v.  Tennessee,  97  U.  S.  509,  24  L.  ed. 

1118 919 

Collier  v.  Simpson,  4  Car.  &  P.  73 147 

r.  State,  20  Ark.  36.. 252 

Collins  v.  Com.,  12  Bush,  271 ....i52,  535 

15.  Rockwood,  64  How.  Pr.  57. ..96, 100 
Colt  D.  Sixth  Ave.  R.  Co.,  49  N.  Y.  671..  233 

Columbus  15.  Dahn.  36  Ind.  .330 454 

Coman  t;.  State,  4  Blackf.  241 81 

Cominsr.  Hetfleld,  12  Hun.  375. 357 

Com.  v.  Abbott,  130  Mass.  472 215,  583 

15.  Andrews.  143  Mass.  23 116 

15.  Anthes,  5  Gray,  185 141 

v.  Bakeman,  131  Mass.  577,  41  Am. 

Hep.248 S47 

15.  Baker,  11  Phila.  631 625 

15.  Baldwin,  11  Gray,  197,   71  Am. 

Dec.  703 _. 774 

15.  Barlow.  97  Mass.  597 219 

15.  Barry,  124  Mass.  325 716 

1).  Blair,  126  Mass.  40 522 

V.  Blanding,  3  Pick.  304,  15  Am. 

Dec.214 388 

v.  Blood,  141  Mass.  571 ..700,  706 

15.  Bonner,  97  Mass.  587 352,  364 

15.  Bonner,  9  Met.  410 888 

v.  Bosworth,  22  Pick.  397  .509,  512,  515 

15.  Bowden,  9  Mass.  494 617 

15.  Bowers,  121  Mass.  45 851 

15.  Bradford,  126  Mass.  42 214 

15.  Brady,  5  Gray,  78 

15.  Briggs,  5  Piek.  429 240 

15.  Brooks,  9  (.raw  299. 512 

15.  Brown,  121    Mass.  69 147,  149 

15.  Bruce,  16  Phila.  510..  - 529 

v.  Burdick,  2  Pa.  164,  44  Am.  Dee. 
186 ----  704 


XXX 


TABLE    OF    CASES. 


Com.  v.  Burke,  12  Allen,  182 

v.  Burke,  16  Gray,  33  ._ 

v.  liutland,  119  Mass.  317 

V.  Butts,  124  Mass.  449 

v.  Buzzell,  16  Pick.  160 

v.  Call,  21  Pick.  509,  32  Am.  Dec. 

284 209,  327,  701, 

v.  Campbell.  7  Allen,  542 

v.  Carey,  2  Brewst,  4(14 290,  440, 

v.  Casey,  11  Cush.  417,  59  Am.  Dec. 

150 

v.  Chabbock,  1  Mass.  144 

v.  Chapman.  13  Met.  68.. 882, 

v.  Cherry,  2  Va.  Cas.  20 

V.  Choate,  105  Mass.  451 

-.-...  73.  212,  216,  688,  700, 

v.  Clap,  4  Mass.  163,  3  Am.  Dec.  212 

v.  Clark,  145  Mass.  251  .  . 

v.  Cleary,  8  L.  R.  A.  301, 135  Pa.  64 

V.  Cobb,  14  Grav,  57 435, 

V.  Coe,  115  Mass.  481 110, 

111,  153,  458.  700,  709,  714,  720,  780, 
v.  Cohen,  12;  Mass.  282 

v.  Collins,  138  Mass.  4*3 

V.  Cooper,  5  Allen,  495, 81  Am.  Dec. 


737 
276 
791 
738 
201 

851 
152 
601 

539 
504 

S9S 

203 

714 

ss2 
348 
600 
439 

781 
525 

738 

539 

v.  Cor  lies,  3  Brewst.  575777." 906 

V.  Cornish,  6  Uiim.  249 788,  789 

v.  Costello,  12(  t  Mass.  1367 773 

V.  Costley,  118  Mass.  1     133,  436,  437,  439 

v.  Crawford,  8  Phila.  490 569 

V.  Crocker,  108  Mass.  4*,4 500,  501 

v.  Crozier,  1  Brewst.  349 625 

v.  Cuttee,  108  Mass.  285 491,  500,  501 

v.  Cullen,  111  Mass.  435 499 

U.  Culver,  126  Mass.  464 491 

V.  Uu rtis,  97  Mass.  574 504 

v.  Davis,  11  Pick.  4i2 67 

v.  Deacon,  10  Serg.  &  R.  125 920 

v.  Desmarteau,  16  Gray,  1 405 

t'.  Dillane,  11  Gray,  67 616 

v.  Donahoe,  133  Mass.  407 571 

v.  Dorsey,  103  Mass.  412  ....193,  444,  621 
v.  Dougherty,  1  Browne  App.  20..  621 

r.  Douglass,  5  Met.  241 798 

r.  Dowdican,  114  Mass.  237 481 

v.  Downing,  4  Gray,  29.197,  508,  514,  525 
V.  Drew,  19  Pick.  179  ..700,  702,  703,  708 

v.  Drew,  153  Mass.  588 705 

v.  Drum,  58  Pa.  9.. 572,  771 

v.  Duulop,  Lewis,  Crim.  L.  394 625 

V.  Eastman,  1  Cush.  189,  48  Am. 

Dec.  596  82 

212.218,  4627  m  71L  71477197  Vs7:'.  900 

v.  Eddy,  7  G  ray,  583 424,  635 

v.  Eichelberger,  119  Pa.  254 706,  721 

V.  Elliot,  110  Mass.  104 512 

v.  Emmons.  98  Mass.  6 27 

v.  Parkin,  2  Pars.  Sel.  Eq.Cas.  43'.!.  674 

v.  Ferrigan,  44  Pa.  386 212,  700,  714 

v.  Fisher,  9  Phila.  594 706 

V.  Fitzpatrick,  1  L.  R.  A.  451,  121 

Pa.  109 617 

v.  Flanagan,  7  Watts.  &  S.  415 405 

V.  Ford,  130  Mass.  64,  39  Am.  Rep. 

436 106 

v.  Freeth  (Pa.)  6  Am.  L.  Reg.  400..  678 

v.  Frev,  50  Pa.  245 706 

v.  Gallagher,  16  Gray,  21(1 738 

v.  Gardner,  11  Gray,  438 191,  405 

v.  Giles,  1  Gray,  466 67,  68 

v.  Gillespie,  7  Serg.  &  R.  479 171 

i'.  Goodwin,  14  Gray,  45,  122  Mass. 

19 220,436,441 

v.  Gray,  150  Mass.  327 457 

v.  Gray,  101  Pa.  386,  47  Am.  Rep. 

733 465 

v.  Gray,  129  Mass.  474,  37  Am.  Rep. 

378 854 

v.  Green,  17  Mass.  515 2H0 

D.Green,  1  Ashm.  289 441,  448 

V.  Green,  2  Pick.  380 832 


Com.  v.  Grimes,  10   Gray,  470,  71   Am. 

Dec.  666 738 

v.  Gross,  1  Ashm.  281 191 

v.  Hackett,  2  Allen,  136 80, 122 

r.  Haggefty,   Lewis,     Crim.     L. 

■lie'     _         625 

v.  Hanlon73  Brews"t746i..777'*...7  498 

r.  Hard  v,  2  Mass.  303 600,606 

V.  Harman,  4  Pa.  269 436,  546,  548 

v.  Harmon,  2  Gray,  289 888 

v.  Harris,  131  Mass.  336 606 

V.  Hart,  2  Brewst.  546 621,  624,  625 

v.  Harwood,  4  Gray,  41,  64  Am. 

Dec.  49 126 

v.  Haskell,  2  Brewst.  491,  4  Am.  L. 

Rev.  240 652,661,673 

v.  Hawkins,  3  Gray,  463 

190,  621,  624,  626,  627,  757 

v.  Hayes,  138  Mass.  186 483 

v.  Heath,  11  Gray,  303 635,  640 

v.  Henry,  22  Pa.  253 716 

v.  Hill,  11  Cush.  137 204,  410 

v.  Hill,  14  Mass.  207 289 

V.  Hills,  10  Cush.  530 290 

v.  Holmes,  127   Mass.  424.  34  Am. 

Rep.  391 476,  511,  515,  516 

v.  Holmes,  17  Mass.  336 882 

v.  Horton,  2  Grav,  354. 824,  851,  855 

v.  Howe,  9  Gray,  110.. 498 

r.  Hudson,  97  Mass.  565.. 445 

(-.  Hunt,  4  Met.  Ill,  38  Am.  Dec. 

346. 719,901 

v.  Hussey,  111  Mass.  432.... 738 

v.  Hutchinson,  10  Mass.  225 291 

u.Irwin,  8  Phila.  380 901 

v.  Jackson,  132  Mass.  16 73,  215 

c.  Jackson,  11  Bush,  679,  21   Am. 

Rep.  225 804,  807,  809 

v.  Jeffries,    7   Allen,  548,  83   Am. 

Dec.  713 81,  88,708 

v.  Jenkins,  76  Mass.  485 72 

v.  Johns,  6  Grav,  274.. 795 

v.  Johnson,  133  Pa.  293 735) 

V.  Jones,  1  Leigh,  598. 193,  444,  448 

v.  Kenney,  12  Met.  235, 46  Am.  Dec. 

672... 501,502 

v.  Kimball,  24   Pick.  373.  35  Am. 

Dec.  326 39 

■V.  King,  9  Cush.  284  ._ 740 

v.  Kinison,  4  Mass.  646 42 

V.  Knapp,  9  Pick.  496,  20  Am.  Dec. 

491 175,492,499 

v.  Lahey,  14  Gray,  91. .  .824.  8:36,  851,  855 
v.  Lane,  113  Mass.  458, 18  Am.  Rep. 

509 804,  864 

v.  Larrabee,  99  Mass.  413 512 

v.  Lannan,  13  Allen,  563 349 

v.  Leach,  1  Mass.  59 729 

o.  Leonard,  140  Mass.  473,  54  Am. 

Rep.  485 440 

v.  Littlejohn,  15  Mass.  163.. 804,  805,  852 

v.  Locke,  114  Mass.  288  ._ 427 

v.  Luscomb,  130  Mass.  42 168 

v.  Lyden,  113  Mass.  452. 319 

v.  McCarthy,  119  Mass.  a54 214 

v.  McDonald,  110  Mass.  405 813,  832 

v.  McGorty,  114  Mass.  299 335 

v.  McKie,  1  Gray,  61,  61  Am.  Dec. 

410 39,423,424 

i'.  M'Pike,  3  Cush.  181,  50  Am.  Dec. 

727 80,  125,536,543 

v.  Malone,  114  Mass.  295.... •_ ._  626 

V.  Marsh,  10  Pick.  57 519,  521 

v.  Mash.  7  Met,  472 457 

v.  Mason,  105  Mass.  163 709,  720,  727 

v.  Matthews.  89  Ky.  287 534 

l'.  Mead,  12  Gray,  167,  71  Am.  Dec. 

741 204,410 

v.  Merrian,  14   Pick.   518,  25  Am. 

Dec.  420..  .214,  510,  824,  836,  853,  855 
v.  Merrill,  14  Gray,  418, 77  Am.  Dec. 

:J30 238 


TABLE   OF   CASES. 


XXXI 


Com.  v.  Messenger,  1  Bum.  273,  2  Am. 

Dec.  441 

v.  Miller,  3  Custa.  243 

v.  Minor,  88  Ky.  422. 

v.  Moore  (Pa.)  3  Crim.  L.  Mag.  839. 

v.Moore,  3  Pick.  194 

v.  Morgan,  107  Mass.  199 349, 

v.  Morrell,  99  Mass.  542 

B.  Morrill,  8  Cush.  571 

v.  Mosier,  135  Pa.  221 

v.  Mosier,  4  Pa.  264 652,  660,  674, 

v.  Mulatto  Bob,  4  U.  S.  4  Dall.  145, 

1L.  ed.  776 

u.  Mullen,  97  Mass.  545 

v.  Mullins,  2  Allen,  295 

v.  Murphy,  14  Mass.  388 

v.  Murray,  2  Ashm.  41 

v.  Murtagh,  1  Ashm.  272  ..  .805,  807. 

v.  Newell,  7  Mass.  247 

v.  Newton,  1  Grant,  Cas.  454, 

v.  Nichols,  114  Mass.  285,  19  Am. 

Rep.  346 349,  521,  836,  651, 

v.  Norfolk  County  Ct.  of  Sess.  5 

Mass.  435 

B.  Nott,  135  Mass.  269 

v.  O'Brien,  12  Allen,  183 

v.  O'Brien,  119  Mass.  342,  20  Am. 

Rep.  3^5 ....606, 

V.  O'Brien,  2  Brewst.  566 

v.  Packard,  5  Gray,  101 

v.  Parker,  2  Pick.  550 

v.  Parker,  2  Cush.  212. 792, 

v.  Perrier,3  Phi  la.  229 

v.  Piatt,  11  Phila.  415 

B.  Pollard,  12  Met.  225. 

v.  Pomeroy.  117  Mass.  143 638, 

13.  Porter,  10  Met.  263 

13.  Porter,  4  Gray,  423 

13.  Preece,  140  Mass.  276 

v.  Price.  10  Gray,  472,  71  Am.  Dec. 
60S 512,  516,  521,  700, 

13.  Purchase,  2  Pick.  525 

13.  Putnam,  1  Pick.  136. 

V.  Ray,  69  Mass.  446 

13.  Regan,  105  Mass.  593 

13.  Richards,  18  Pick.  434 384. 

u.  Ricketson,  5  Met.  412 

13.  Riggs,  14  Gray,  376,  77  Am.  Dec. 
333 

13.  Robinson,  146  Mass.  571 73, 

t3.  Robinson,  1  Grav,  555 . 

13.  Roby,  12  Pick.  496 613.  614, 

13.  Roarers,  7  Met.  500.  41  Am.  1  >  c. 
458 6*5,637,650,  663,  668, 

13.  Rowe,  14  Grav,  47 39, 

13.  Ruddle,  142  Pa.  144 

d.  St.  Clair,  1  Gratt.  556... 

v.  Samuel,  19  Mass.  103 

13.  Sawtelle,  141  Mass.  140 

13.  Scott,  123  Mitss.  222 73,  483, 

v.  Scott,  1  Pa.  L.  T.  N.  S.  221 

13.  Sego,  125  Mass.  210.. 

13.  Selfridge,  Horrigan  &  T.  Cas. 
on  Self-defense  ....198,  570,  573, 

v.  Seybert,  4  Kulp,  4. 

v.  Shaw,  4  Cush.  594,  50  Am.  Dec. 
813 

13.  ShawTPa.)  6  Crim."  L.  Mag.  245 " '. 

13.  Shedd.  7  Cush.  514 719,  900, 

13.  Shepard,  1  Allen,  575 211, 

13.  Shepherd,  6  Binn.  283, 6  Am.  Dec. 
449 

v.  Shurlock,  14  Phila.  Leg.  Int.  33. 

13.  Shurn,  145  Mass.  150 

v.  Simnson,  9  Met.  138 

V.  Smith,  119  Ma-s.  305 

13.  Smith,  12  Met.  238 

v.  Smith,  15  Phila.  Leg.  Int.  33  .... 

13.  Smith,  11  Allen,  253 

13.  SnelHng,  15  Pick.  321,  32  Mass. 
337 67. 

v.  Snow,  111  Mass.  411 


45 
207 

42* 
7115 
824 
882 

49 

Tin 
348 
678 

191 

349 
290 
823 
243 

K09 
748 
265 

854 

203 

191 

512 

608 
738 

238 
203 
798 

625 
625 
798 
680 
111 
201 
491 

714 
617 
804 

773 
606 

:•><; 
158 

173 
771 

521 
618 


763 


Com.v.  Sparks,  7  Allen,  534 286 

13.  Speer,  2  Va.  Cas.  65 720 

13.  Starkweather,  10  Cush.  60 373 

13.  Stearns,  10  Met.  256 216 

13.  Stebbins.  8  Gray,  492 738 

13.  Stone,  4  Met.  43. 458,  700,714 

1).  Strieker,  1  Browne  App.  47 857 

13.  Sturtivant,  117  Mass.  122, 19  Am. 

Rep.  401 145,  147,  149,  769 

13.  Sullivan,  150  Mass.  315 352 

13.  Swinney,  1  Va.  Cas.  146 7211 

13.  Taylor,  129  Pa.  534 202 

13.  Tavlcr,  5  Cush.  605 493,  499 

13.  Taylor,  5  Binn.  281 882 

13.  Tennev,  97  Mass.  50. 709 

13.  Thomas,  1  Va.  Cas.  307.. 816 

13.  Thompson.  3  Dana,  301 79S 

13.  Thrasher,  11  Gray,  450 824.  855 

13.  Tinkham,  14  Gray,  12 

13.  Tolliver,  119  Mass.  312 348 

V.  Trimmer,  84  Pa.  69 617 

V.  Tuckermnn,  10  Grav,  173, 

211,  214.  451, 462,  493,  495,  700,  714,  743 

b.  Tuey,  8  Cush.  1 440 

13.  Turner,  3  Met.  19 461 

B.  Tuttle,  12  Cush.  502 436,  439 

B.  Upricbard,  3  Gray,  434,  63  Am. 

Dec.  762 740 

b.  Walker,  108  Mass.  309 705 

B.Wallace,  7  Gray,  222 39,  456 

v.  Wallace,  10  Grav,  221.. 719 

0.  Walton,  2  Brewst.  487 867,  872 

v.  Webster,  5  Cush.  295,   52  Am. 
Dec.  711 .191,  424, 435, 450, 474,546, 
550,  554.  556,  597,598,  600,  601,604,  683 
B.  Weiss,  11  L.  K.  A.  530, 139  Pa.  247  449 

V.  Welsh,  4  Gray,  535 372 

v.  Wentz,  1  Ashm.  269 857 

o.  White,  8  Pick.  453 789 

B.  Whittemore,  11  Grav,  201 495 

v.  Williams,  2  Ashm.  69.... 243 

r.  Williams,6  Grav,  1 456 

b.  Williams.  105  Mass.  62... 483 

v.  Williard,  22  Pick.  476 Sfft 

v.  Wilson.  1  Gray,  337 ....146.  149 

V.  Wood.  4  Gray,  11  67.  68 

b.  Wood,  11  Grav,  86 525 

B.  Work.  43  Phila.  Lesr.  Int.  57.901,  904 
B.  York,  9  Met.  93,  43  Am.  Dec.  373 

424   432   440   118 
Compton  "bV  Wilder,"  40"  Ohio  St.  136"-931,  935 

Comstock  B.  Smith,  20  Mich.  338 70 

Conger's  Case.  4  City  Hall  Rec.  65 707 

Coukey  B.  People,  1  Abb.  App.  Dec.  418  605 

Connaghan  v.  People,  S8  111.  460 431,  440 

Connaughtv  v.  Slate,  1  Wis.  159,  60  Am. 

Dec.  370 fJ04 

Connecticut  v.  Bradish,  14  Mass.  296 83 

Connecticut  Mut.  L.  Ins.  Co.  b.  Ellis,  89 

111.516. 145,  147 

Connecticut  Mut.  L.  Ins.jCo.  13.  Lathrop, 

111  U.  S.  612,  28  L.  ed.  536 85 

Conner's  Case,  3Citv  Hall  Rec.  59 774 

Connor  b.  Giles,  76  Me.  132 230 

Connors  v.  People,  50  N.  Y.  240 346,  351 

Continental  Ins.  Co.  b.  Delpeuch,  82  Pa. 

225  335 

Conwav  "state,"  118  In"d"."483".".".".*.'.*.*.V369.  641 

Cook  13.  Cook,  32  N.  J.  Eq.  475 8.50 

13.  Corn,  1  Overt.  340 296,  297 

B.  Hart.  146  U.  S.  183.  36  L.  ed.  934.  938 

B.  People,  2  Thomp.  &  C.  404 

401,  871,  B80 

B.  State,  49  Miss.  9... 404 

B.  State,  11  Ga.  53,  56  Am.  Dec.  416 

805,840,852 

Cooke  B.  Woodrow,  9  U.  S.  5  Cranch,  13, 

3L.ed.22 42 

Cookham  v.  State,  5  W.  Va.  510 136 

Cooper  t3.  Barber.  24  Wend.  105 893 

B.  Blood, 2  Wis.  62 258 

V.  Cooper,  10  La.  249,  252 850 


X.XX11 


TABLE    OF    CASES. 


Cooper  v.  Gibbons,  3  Campb.  363 221 

V.  Lawson,  8  Ad.  &  El.  746.. 894 

v.  State,  120  lnd.  377 198,  244,  251 

v.  State,  53  Miss.  383 481 

Coote   v.  Bank   of    United   States,   3 

Crancb,  C.  C.  50 46 

Copeland  v.  Koontz,  125  lnd.  126 198 

r.  State,  7  Humph.  479 239,240 

Copperman  v.  People,  1  Hun.  15 

-. 700,712,714,735 

Corbett  v.  Brown,  8  Bin?.  33 240 

Corley  v.  State,  50  Ark.  305 401 

Cornelius  v.  Com.,  15  B.  Mon.  539 580 

Corning  v.  Ashley,  4'Deni<>.  354... 100 

Cornman  v.  Eastern  Counties  R.  Co.,  4 

Hurlst.  &  N.  784 233 

Corcoran  v.  Boston  &  A.  R.  Co.,  133 

Mass.  509 233 

Corson  v.  Corson,  44  N.  H.  587 75 

Cortlandt  County  Supt.  of  Poor  v.  Her- 
kimer County  Supt.  of  Poor, 

44N.Y  22 454 

Costello  v.  Crowell,  133  Mass.  &52._ 

98.104,111,781 

Costelo  v.  Crowell,  139  Mass.  590 Ill 

Costly  v.  State,  19  Ga.  614 252 

Cotton  v.  State,  87  Ala.  103 349 

V.  State,  31  Miss.  504 569 

V.  Timer,  45  Ala.  378,  6  Am.  Rep. 

703 25 

Cottrilli;.  Myrick,  12  Me.  222.. 481 

Couch  v.  Charlotte,  C.  &  A.  R.  Co.,  22  S. 

C.  557 159 

v.  State.  63  Ala.  103  ._ 255 

Coughlin  v.  People,  18  111.  266,  68  Am. 

Dec.  541 229 

Coulter  v.  American  Merchants  D.  Exp. 

Co.,  56  N.  Y.  588 373 

D.Stuart.  2  Yerg.  225 797 

Course  v.  Stead,  4  U.  S.  4  Dall.  22,  1  L. 

cd..  724  56 

Coveney  r.  Tannahiii."  i" Hill"  ~33.7".7.~299~,  316 

Cowan  v.  State.  22  Neb.  520 7m 

Co  wen  v.  People,  14  111.348 706,  710 

Cowley  v.  People,  83  N.  Y.  464,  38  Am. 

Rep.  464 152,  153,  350,  665 

Cox  v.  Coleridge,  1  Barn.  &  C.  37 ..257 

v.  Eayres,  55  Vt.  24 373,  374 

V.  People,  109  TU.  457.. 190 

v.  People.  80  N.  Y.  500 206,  405,  730 

V.  State,  64  Ga.  374 160 

Toy,  Ex  parte,  32  Fed.  Rep.  911 931,  9a5 

Coyle  v.  Com.,  1(30  Pa.  573.  45  Am.  Rep. 

397 693 

Cozzens  v.  Higgins,  1  Abb.  A  pp.  Dec. 

451 .152,  153 

Craddock  v.  Craddock,  3  Lift.  (Kv.)  78..  416 

Craft  v.  State,  3  Kan.  450 771 

Craft'sApp.,  42Conn.l46 98 

Crafts  v.  Boston.  109  Mas-.  521 232 

Craig  v.  Grant,  6  Mich.  453 373 

Crandalli\People,2Lans.309  .s;n.  -;:;,  s;i,-:t 
Crane  v.  Morris,  31  U.  S.  6  Pet.  598,  8  L. 

ed.  514 35 

Crary  v.  Sprague,  12  Wend.  51,  27  Am. 

Dec.110 382,  384,  387 

Craven  v.  Smith,  L.  R.  4  Exch.  146 400 

Crawford,  Re,  113  N.  Y.  560 258 

v.  Elliott,  1  Houst.  (Del.)  465 22 

».  State,  12 Ga.  112 328 

Creamer  r.  State.  -U  Tex.  174 283 

Creek  v.  State,  24  lnd.  151 573 

Crerar-u.  Sodo,  1  Mood.  &  M.  85 156 

Cribbs  v.  State,  86  Ala.  613 57."),  584 

Crichton  v.  People,  6  Park.  Crim.  Rep. 

363.. 404 

Crisp  V.  Anderson.  1  Stark.  35 221 

Crockett  v.  State,  52  Wis.  214 206 

(  rogban  v.  State.  22  Wis.  444 

(  ronan  v.  Roberts,  65  Ga.  678 370 

C.-onkhite  v.  Dickerson,  51  Mich.  178  ...  334 
Crookshank  v.  Kellogg,  8  Blackf ,  256  . .  195 


Crosby  v.  Berger,  11  Paige,  377 316 

Cross  v.  Bartholomew,  42  Vt.  206 103 

v.  People,  47  111.  152,  95  Am.  Dec. 

474 249 

v.  State.  68  Ala  476 183,  185,  248 

Crosswell  v.  People,  13  Mich.  427,  433,  87 

Am.  Dec.  774 831 

Crouch  r.  Eveleth,  15  Mass.  305 23 

Crowe,  He,  1  Chitty,  214 257 

Crowell  v.  Western  Reserve    Bank,  3 

Ohio  St.  406 321 

Croy  v.  State,  32  lnd.  384 252 

Crozier  v.  People,  1  Park.   Crim.  Rep. 

457 854 

Cruger  v.  Hudson  R.  Co.,  12  N.  Y.  199  255 
Culhane  t;.  New  York  Cent.  &  H.  R.  R. 

CO..60N.  Y.136 231 

Cullen  v.  Com..  24  Gratt.  624  306,  310 

Cummingsi-.  Taylor,  24  Minn.  429 335 

Cunningtiam  v.  Hudson  River  Bank,  21 

Wend.  557 481 

v.  State,  56  Miss.  269, 21  Am.  Rep. 

360 26,  6a5,  639,  642,  662 

v.  State,  73  Ala.  51. 878 

Curry  v.  Com.,  2  Bush,  67. 626 

Curtis  v.  Chicago  &  N.  W.  R.  Co.,  18 

Wis.  312 __ 481 

r.  Jackson,  13  Mass.  507 240 

v.  State,6Coldw.  9 733 

Cuyler  v.  McCartney,  40  N.  Y.  221... 901,  904 

D. 

Dacey  v.  People,  116  111.  555 426,  645 

Da  Costa  v.  Jones,  Cowp.  729 ...74,  75 

Daggers  v.  Van  Dyck,  37  N.  J.  Eq.  130..  5 
D'Aguilar  v.  D'Aguilar,  1  Hagg.  Eccl. 

Rep.  777,  note 854 

Dahmer  v.  State,  56  Miss.  789 142 

Dailey  v.  Dailey,  Wright  (Ohio)  514, 650 

v.  Grimes,  27  Md.  440 157 

Dainese  v.  Allen,  14  Abb.  Pr.  N.  S.  363...  83 

Dainsi'.  State,  2  Humph.  439 191 

Dale  v.  State,  10  Yerg.  551 191 

Dalton  Divorce  Case  (Mass.)  May,  1856.  548 

Daly  v.  Maguire,  6  Blackf.  137 153 

Dana  v.  Kemble,  19  Pick.  112 83 

v.  Tucker.  4  Johns.  487 206 

Danforth  v.  Reynolds,  1  Vt.  265.. 56 

Daniel  v.  Prather,  1  Bibb,  484 240 

c.  State,  65  Ga.  200 136 

Danielson  v.  Dyckman,  26  Mich.  109  ...  156 
Danner  v.  State,  54  Ala.  127, 25  Am.  Rep. 

662.. 21 

Darby  v.  Ouseley,  1  Hurlst.  &  N.  12 147 

Darland  v.  Kosencrans,  56  Iowa,  122 159 

Darling  v.  Westmoreland,  52  N.  H.  401, 

108    266 

Dairy  v.  People,  10  N.  Y.  136 191 

Daver.  State,  22  Ala.  23 156 

Davenport  r.  State.  38  Ga.  184 174 

Davenport  Wool.  M.  Co.  v.  Neinstedt, 

81Iowa,226 85 

Davidson  v.  De  Lallande,  12  La.  Ann. 

826 325 

v.  People.  4  Colo.  145 ...581,  594 

V.  State,  39  Tex.  129 290 

Davie  v.  Briggs,  97  U.  S.  028,  24  L.  ed. 

1086 22,23 

Davis  v.  Chapman,  6  Ad.  &  El.  767 68 

v.  Duncan,  L.  R.  9  C.  P.  396 894 

v.  Field. .V,  Vt.  420.. 104,  107 

v.  Foster.  68  lnd.  258.. 609 

v.  Franke.  33  Gratt.  413 610 

v.  Fulton,  :s_'  Wis.  dot 258 

v.  Hardy,  76  lnd.  272.. 187 

r.  Liberty  &  C.  G.  R.  Co.,  84  lnd.  36  258 

v.  People,  114  111.  86 440 

v.  People.  1  Park.  Crim.  Rep.  447  .  750 

V.  Peveler,  65  Mo.  189 414 

v.  Ruff,  1  Cheves,  L.  17, 34  Am.  Dec. 
584 883 


TABLE    OF    GASES. 


XXX111 


Davis  v.  State,  38  Md.  15 145 

v.  State,  35  In-1.  498,9  Am.  Rep.  760  253 

V.  State,  46  Ala.  80 203 

V.  State,  17  Ala.  354 353 

V.  State,  15  Tex.  App.  594 483 

v.  State,  2  Tex.  App.  588 493 

v.  State,  74  Ga.  869.. 771 

v.  Walter,  70  Iowa,  465 485 

Davison,  Be,  21  Fed.  Rep.  618 917 

Davison  v.  People,  90  111.  221 573,  758 

Dawson  v.  State,  16  Ind.  438 626 

Day  v.  Bream,  2  Mood.  &  R.  54 884 

v.Moore,  13  Gray,  522 157 

v.  State,  63  Ga.  669 694 

D'Ayrolles  r.  Howard,  3  Burr.  1385 240 

Dayton  V.  Adkisson,  4  L.  It.  A.  488,  45  N. 

J.  Eq.603 863,  865 

Dean  v.  Com.,  32Gratt.  912 546.  771 

Dear  v.  Knight,  1  Fost.  \-  F.  433 371 

Dearman  r.  State,  71  Ala.  351.  375,  766 

Deathridge  v.  State,  1  Sneed,  75 496 

Deaveru.  Rice,  25  N.  C.  280 ....43,  44 

Debaun,  Be  (Canada)  11  Crim.  L.  Mag. 

47. .. 940 

Deere  v.  Plant,  42  Mo.  GO 230 

Deerins  v.  Metcalf ,  74  N.  Y.  501 224,295 

De  Fries  v.  Da  vies,  7  Car.  &  P.  112 887 

DeGroat  c.  People.  39  Mich.  124... 839 

DeHart  v.  Etnire,  121  Ind.  244  206 

Deig  v.  Morehead,  110  Ind.  451 258 

De  Jarnette  v.  Com.,  75  Va.  867 637,  663 

DeLane  v.  Moore,  55  U.  S.  14  How.  253, 

14  L.  ed.  409 42 

Delaney  v.  Erickson,  10  Neb.  492 89 

Delany'r.  People,  10  Mich.  241  839 

DeLibellis  Famosis,  5  Coke,  125a 884 

Delk  D.  State,  3  Head.  79 229 

Delphi  v.  Lowery,  74  Ind.  520 260 

Dempsey  v.  State,  3  Tex.  App.  429 14!) 

Den  v.  Vancleve,  4  Wash.  C.  C.  263 25 

Dean  v.  Driver,  1  N.J.  L.  160 276 

Dennett  r.  Dow,  17  Me.  19 :i72 

Denny  v.  Williams,5  Allen,  4 238 

Densmore  v.  State,  67  Ind.  306 . . .  .192,  436,  437 

Derby  v.  Derby,  21  N.  J.  Eq.  36 

Detroit  &  M.  R.  Co.  v.  Van  Steinburg,  17 

Mieh.  99 156,  231 

Dick  v.  State,  30  Miss.  593 504 

Dickenson  v.  Coulter,  45  Ind.  445 358 

Dickerson  v.  State,  48  Wis.  288.. 357 

Dickey  v.  Maine  Teleg.  Co.,  43  Me.  492..  232 

v.  State,  21  Tex.  App.  430 831 

Dickinson  v.  Breeden,  25  111.  186 43,  44 

Dietrich  v.  Baltimore  &  H.  S.  R.  Co.,  58 

Md.347.. 108 

Dignowitty  v.  State,  17  Tex.  530,  67  Am. 

Dec.  670 726 

Dill  v.  State,  1  Tex.  App.  278 281 

v.  State,  25  Ala.  15 569 

V.  State,  6  Tex.  App.  113 746 

Dilleber  v.  Home  Ins.  Co.,  69  N.  Y.  256..  710 

Dillin  v.  People.  8  Mieh.  357 127,  414 

Dillinjjham  r.  State.  5  Ohio  St.  280 708 

Dimmig,  Exparte,  71  Cal.  165 943 

Dinah  v.  State,  39  Ala.  359. 496 

Dinwiddie  i\  State,  103  Ind.  101 249 

Disque  v.  State,  49  N.J.  L.  249 347 

Distin  r.  Rose,  69  N.  Y.  122 886 

District  of  Columbia  v.  Armes,  107  U.  S. 

519,27  L.  ed.  618 286 

Dixon  v.  State.  13  Fla.  6:36 495,  496 

Dobbins  v.  State,  14  Ohio  St.  493 616 

Dodge  v.  Brattain,  Meigs,  84 536 

Dodge  v.  Gaylord,  53  Ind.  365 195 

v.  State,  34  N.  J.  L.  45.5 798 

Doe  v.  Arkwright,  5  ( !ar.  &  P.  575 80 

v.  Broad,  2Seott,  N.  R.  685 68 

v.  Flanagan,  I  Ga.  538 22,  23 

V.  Philips,  6T.  R.  597 r,s 

v.  Ross,  7  Mees.  &  W.  102 81 

v.  Sisson,  12  East,  63 70 

w.Tyler,  6  Bing.  561 245 

C 


Doe  v.  Vardill,  5  Barn.  &  C.  438 863 

Dominges  v.  State,  7  Smedes  &  M.  475,  45 

Am.  Dec.  315 163,379 

Don's  Estate.  4  Drew.  197 862 

Donahue  v.  O'Conner,  13  Jones  &  S.  297.    38 

Doncaster  v.  Day,  3  Taunt.  262 356,  358 

Donley  v.  Camp,  22  Ala.  659 258 

Don  Moran   v.  People,  2.5  Mich.  .356,  12 

Am.  Rep.  283 815 

Donnall's  Case,  Frazier,  171 321 

Donnel  v.  United  States,  1  Morris  (Iowa) 

141.39  Am.  Dec.  457     171,  173 

Donnellan  v.  Com.,  7  Bush,  676  448 

Donnelly  v.  State.  26  N.  J.  L.  463 

....332,  440,  501,  502,  539,  536,  539,  540 

Donohue  v.  People,  56  \.  V.  211 68 

Dooly  v.  Jinnings,  6  Mo.  61 231 

Duo  Woon.  Be,  IS  Fed.  Hep.  898 943,  944 

Doran  v.  Mullen,  78  111.  343 330 

U.Smith,  49  Vt.  353.. 631 

Dorman  v.  State,  56  Ind.  454 13 

Dove  v.  State,  3  Heisk.  348.  

26,635,  638,  639,  674 

Dow's  Case.  18  Pa.  37 931 

Dowdy  v.  Com.,  9  Gratt.  737, 00  Am.  Dec. 

314 720 

Dowling  v.  Dowling,  10  Ir.  L.  Rep.  336..    78 

Downer  v.  Baxter,*!  Vt.  467 206 

Downiug  v.  Rugar,  21  Wend.  178,  34  Am. 

Dec.  223 281 

Doyle  v.  Jessup,  39  111.  460 606 

v.  Mulren,  7  Abb.  Pr.  N.  S.  258  ....  248 

v.  State.  17  Ohio,  222 203,255 

Doyley  v.  Roberts.  3  Bing.  N.  C.  835....  883 
lazier  v.  Jerman.  30  Mo.  216,  220  157,  260,  32S 

Draper  v.  Draper,  68  Hi.  17 289 

V.  State.  4  Baxt.  246 249,  758 

Drayton  r.  Wells,  1  Nott  &  McC.  409,  9 

Am.  Dec.  718 354 

Drew  v.  Andrews.  8  Hun,  23 228 

r.  State,  124  Ind.  9 251,377 

Ducher  r.  state,  18  Ohio,  308... .7-50,  751 

Duchess  of  Kingston's  Case,  20  How.  St. 

Tr.  355... 57,  805,  806,  809 

Duebbe  v.  State.  1  Tex.  App.  159... 448 

Dufresne  v.  Weise,  46  Wis.  290        .  361 

Duffy  v.  Masterson.  44  N.  V.  5,57 250 

».  People,  26  x.  Y.  588 189 

Dugan  v.  Mahoney,  11  Allen,  573 104 

Dugau,  Be,  2  Low.  Dec.  367 930,933 

Dukes  V.  State,  11  Ind.  557,  71  Am.  Dec. 

370 ...581,594 

Dumas  v.  State,  14  Tex.  App.  464,  46  Am. 

Rep.  241 804 

Duncan  v.  McCullougb,  4  Serjr.  &  R.  480  319 

v.  Seeley,  34  Mich.  369 104 

v.  State,  49  Ark.  543.... 569 

Dunlap  v.  Richardson,  63  Miss.  447 374 

v.  State,  9  Tex.  App.  179 &56 

Dunlop  v.  Higgins,  1  H.  L.  Cas.  381 94 

V.  Patterson.  5  Cow.  243 224,  295 

Dunn  v.  Com..  6  Pa.  384 165 

V.  Dunnaker,  87  Mo.  597.. 373 

v.  James,  62  How.  Pr.  307 100 

v.  People,  109  111.635.... 

.100,243,431.439,663 

V.  People,  29  N.  Y.  523,  86  Am.  Dec. 

319 159,224,394,  417 

V.  Sin  >wden,  32  L.  J.  Ch.  104 23 

V.  State,  2  Ark.  229,  35  Am.  Dec.  54 

208,209,337,  576 

V.  State,  70  Ind.  47 615,  616 

l'.  State,  45  Ohio  St.  249. 831 

Dunning  v.  Roberts,  35  Barb.  471 94 

Dupree  v.  State,  33  Ala.  380,  73  Am.  Dec. 

433 .  569,  57-;,  576,  594 

Durant  u.Durant,  1  Hagg. Eocl. Rep. 767  s:,i 
Durkee  v.  Vermont  Cent.  R.  Co., 29  Vt. 

137 ..83,89,  93,94 

Durnell  v.  Sowden,  5  Utah,  216  116 

Durnl'ord  v.  Clark,  1  Mart..  0.  8.  202    ...  325 
Durreti  v.  state,  62  Ala.  441 189 


XXXI V 


TABLE    OF    CASES. 


70 


Durst  v.  Masters,  L.  R.  1  Prob.  Div.  373. 

].-,•'    if,.) 

Dutell  v.  State,  4  G.  Greene.  1SS  "."\sm\  255 
Dutteuhoier  v.  State,  34  Ohio  St.  91,38 

_  Am.  Rep.  362 352 

Duvall  v.  Darby,  38  Pa.  56 321 

Dwight  v.  Brown,  9  Conn.  83..  78 

15.  Germania  L.  Ins.  Co.,  103  N.  Y. 

_  341,  57  Am.  Rep.  729 231 

Dynes  v.  Hoover,  61  U.  S.  20  How.  65, 15 

L.  ed.  830. 909,  919 

E. 

Eames  v.  Eames,  41  N.  H.  177  27 

Earll  v.  People,  73  111.  329  261 

Early  v.  Smith,  12  Ir.  C.  L.  Rep.  35". 68 

Eason  v.  Chapman,  21  111.  33. . .  " "  3ttf 

Eastman  v.  Crosby,  8  Allen,  206  "  "    53 

Eastwood  v.  Holmes,  1  Post.  &  F.  349       894 

v.  People,  3  Park.  Crim.  Rep.  25 

-- 204,206 

Eaton  v.  Com.,  6  Binn.  447 203 

v.  New  England  Teleg.  Co.,  68  Me. 

63 

Eborn  v.  Zimpelman,  47  Tex."503,26  I'm". 

Rep.  315 153 

Eddy  v.  Gray,  4  Allen,  435 "     """  861 

Edgar  v.  State,  43  Ala.  48. 578  580 

Edgerly  v.  Emerson,  23  N.  H.  555  258 

Edington  v.  Etna  L.  Ins.  Co.,  77  N.  Y.  564 

„■■■•••••"■ -...317,  318 

v.  Mutual  L.  Ins.  Co.,  67  N.  Y.  185    281 
Edmonds  »j.  Foster,  45  L.  J.  M.  C.  41  221 

Edmonston's  Case,  1  Scotch  L.  Rep.  107  501 
Edwards  r.  Currier,  43  Me.  474  ..  455 

v.  State,  47  Miss.  581 ...  594 

Egbert  v.  Egbert,  78  Pa.  328  "5 

Eggler  i!.  People,  56  N.  Y.642...  192,  588,  607 
Eggspieller  v.  Nockles,  58  Iowa,  649  159 

Ehlert  v.  State,  93  Ind.  76.  it,7 

Eighmy  v.  People,  79  N.  Y.  546  ...  160, 165 
Elam  v.  State,  25  Ala.  56  14>> 

Eldridge  v.  State.  27  Fla.  162       "  897 

Eliot  c.  Eliot,  1  Hagg.  Consist.  Rep.  302  854 
EUicott  v.  Pearl,  35  U.  S.  10  Pet.  412,  9  L. 

ed.  475 371 

Elliott  v.  Dycke,  78  Ala.  150. . .  "    97 

v.  Peirsol,  26  V.  S.  1  Pet.  328,  7  L. 

ed.  164 _ 260 

V.  Van  Buren,  33  Mich.  49.  20  Am. 

Rep.  668 48i 

Elwood  v.  Deitendorf,  5  Barb.  398  260 

Emerson  v.  State,  43  Ark.  372  ..  616 

v.  Sturgeon,  18  Mo.  170..  "  231 

Emery's  Case,  107  Mass.  172 305,  307,  308 

Emig  v.  Diehl,  76  Pa.  a59..  .  a54 

Emmons  v.  Westfield  Bank,  97  Mass.  243  35 
Empire  Transp.  Co.  v.  Steele.  70  Pa.  188  43 
Engleman  v.  State,  2  Ind.  91, 52  Am.  Dec. 

„  494 599  733 

Ennis  v.  Smith,  55  U.  S.  14  How.  400,  14 

L.  ed.  472 55 

Epps  v.  State,  102  Ind.  539  ...  149 

v.  State.  19  Ga.  102. 'mil 

Erben  v.  Lorillard,  19  N.  Y.  299,  302  418'  419 
Erwin  v.  State,  29  Ohio  St.  186  573'  574 

v.  State,  10  Tex.  App.  700 642 

Estep  v.  Wattrous,  45  Ind.  140  252 

Estes  v.  State,  55  Ga.  30. 131 404.  621  626 

Evans  v.  Evans,  1  Hagg.  Consist.  Rep. 

105 476,  510 

V.  Evans,  41  Cal.  103 849 

v.  State,  62  Ala.  6 ""  584 

v.  State,  80  Ala.  4...      .  "744 

V.  Rees,  12  Ad.  &  El.  55 266 

Evansville  &  C.  S.  L.  R.  Co.  v.  Cochran, 

10  Ind.  560 180 

Everingham  v.  Roundell,  2  Mood.  &  R. 

138 si 

Evey  v.  Smith,  18  Ind.  461 260 

Eyler  v.  State,  71  Ind.  49 831 


F. 

Fahay  v.  State,  25  Conn.  205 45 

Fahnestock  v.  State,  23  Ind.  231  448 

Fain  v.  Com.,  78  Ky.  183.  39  Am.  Rep.  213  637 
Fairman  v.  Ives,  1  Dowl.  &  R.  255  888 

Falk  r.  People,  42  111.  331 239,241 

Fanning  r.  State,  14  Mo.  386  .  29 

Farez,  Re,  7  Blatchf .  345 932,  933",  941 

Farkas  v.  State,  60  Miss.  847 357 

Farr  v.  Payne,  40  Vt.  615 27 

v.  Thompson,  Cheves,  L.  37.  370 

Farrant  v.  Olmius,  3  Barn.  &  Aid.  692       240 
Farrell  v.  Brennan,  32  Mo.  328,  82  Am 

Dec.  137 25 

v.  State,  45  Ind.  371.  408 

Farrer  v.  State,  2  Ohio  St.  54  77 

Farris  v.  Com.,  14  Bush.  362 570,  572"  758 

Faulk  v.  State.  52  Ala.  415  546 

Fay  v.  Com.,  28  Gratt.  912. 7,8- 

Felix  v.  State,  18  Ala.  720  ...  601 

Fennell  v.  Tait,  1  Cromp.  M.  &  R.  584""""  274 

Fenno  v.  Weston,  31  Vt.  345  501 

Fenton  v.  Livingstone,  5  Jur.  N.  S.  1183    865 

V.  Reed,  4  Johns.  52,  4  Am.  Dec.  244  809 

Ferguson  v.  Ferguson,  3  Sandf.  307  850 

v.  Hubbell,  97  N.  Y.  507  771 

v.  State,  49  Ind.  33,  35  ..183,  185,  245,  594 

v.  Thacher,  79  Mo.  511  70 

Feriter  v.  State,  33  Ind.  283  260 

Ferneaux  v.  Hutchins,  2  Cowp.  807       ""    70 

Ferney  r.  Hallacher,  8  Serg.  &  R.  159".  805, 840 

Fero  v.  Ruscoe,  4  N.  Y.  162. .  888  892 

Ferrell  v.  State,  43  Tex.  503  193'  444 

Ferrill  v.  Simpson,  8  Pick.  359  .        *        206. 

Fetter,  Be,  23  N.  J.  L.  311,  57  Am.  Dec.loO  930 

Field  v.  Boynton,  Si  Ga.  239  .. .  98 

v.  Thompson,  119  Mass.  151  108 

Fielder  v.  Fielder,  2  Hagg.  Consist.  Rep". 

197,  4  Eng.  Eccl.  Rep.  527  ...„.  864 
Fields  v.  State,  47  Ala.  603,  11  Am.  Rep 

771 598 

v.  Wyoming,  1  Wyo.  78"         217 

Finch  v.  Bergins,  89  Ind.  360 187,"  188  195 

Find  ley  v.  State,  5  Blackf.  576  '  258 

Finley,  Ex  parte,  66  Cal.  'i64  ""  773 

Finley  v.  State,  61  Ala.  201  203  -'55 

Finn  v.  Com.,  5  Rand.  (Va.)  701  354'  387 

Finnegan  v.  State,  57  Ga.  427  '  203 

First  Baptist  Church  i\  Brooklyn  F.  Ins" 

Co.,  28  N.  Y.  153 342  370 

First  Nat.  Bank  v.  Jones,  88  U.  S    21 

Wall.  325,  22  L.  ed.  542..  451 

v.  First  Nat.  Bank,  114  Pa.l       ""'  106 

Fisher  v.  People,  23  111.  293...  139,  635, '636,  673 

v.  Ronalds,  16  Eng.  L.  &  Eq.  417       296 

Fitzgerald  v.  Pendergast,  114  Mass.  368 "  ~69 

v.  State,  4  Wis.  395  "  203 

Fitzgerrold  v.  People,  37  N.  Y.  413""!"!! 

Fitzhugh"i\  State!  13  Lea." 258 . . "  4'  240'  594 
Flanagan  v.  People,  52  N.  Y  467, 11  Am ' 

Rep.  731.  ...636,  638,642,655,  674',  678 
Flanagin  v.  State,  25  Ark.  92  ->89  495 

Flanders  v.  Groff,  25  Hun.  553  '886 

Flanigan  v.  People,  86  N.  Y.  554,  40"  Am" 

Rep.  556 194  444  (505 

Fleet  v.  Hollenkemp,  13  B.  Mon".  219       '  158 

FlemmgtJ.  People,  27  N.  Y.  329 """  811 

Flon  v.  St.  Louis.  3  Mo.  App.  231  ""  031 

Flower  v.  State,  39  Ark.209  J»« 

Floyd  v.  Mintsey,  5  Rich.  L.361" 43 

^       v.  Wallace,  31  Ga.  668  363 

Flynn  v.  Coffee,  12  Allen.  133 23 

v.  Murphy,  2  E.  D.  Smith,  378 417 

Folsom  v.  Brawn,  25  N.  H.  122  w< 

Foot  v.  Bentley,  44  N.  Y.  166,  4Am."Re"p". 

O** QQ     CI 

v.  HunMns,  98  Mase/523-.! 363 

Foote  v.  Beecher,  78  N.  Y.  158        419 

Forbes  0,  Waller,  25  N.  Y.  430 4A4 

Forbingu.  Weber,  99  Ind.  5S8 %0 


TABLE    OF    CASES. 


XXXV 


Ford  v.  Ford,  7  Humph.  92 377 

v.  Jones,  02  Barb.  484. 606 

V.  Xiles,  1  Hill,  300 320,  327 

c.  State,  71  Ala.  385  .38,  454,  638,  659,  663 

Fordyce  r.  McCants.  55  Ark.  509... 258 

Forrest  v.  Forrest,  25  N.  Y.  510 245 

v.  Forrest,  6  Duer,  102 361 

o.  Kissam,  7  Hill,  465 356,  357 

Fortenberrv  v.  State,  55  Miss.  403. -  569 

Fun  Scott  Coal  A:  Min.  Co.  v.  Sweeney, 

15  Kan.  244 233 

Fosgate  v.  Herkimer  Mfg.  &  H.  Co.,  12 

Barb.  353..  137 

Foster  v.  Hall,  12  Pick,  89,  22  Am.  Dec. 

4iiii 281 

o.  People,  SON.  Y.  609 451 

v.  People, is  Mlch.366. 518 

v.  State,  8  Tex.  App.  248.. 125 

V.  State,  1  Tex.  App.  531 173 

v.  State,  35  Tex.  App.  544 017 

Foster's  Will,  Re,  34  Mich.  21. 153 

Fouts  0.  Stat.'.  8  Ohio  St.  98. 191 

V.  State.  4  G.  Greene,  500.. 44S,  678 

Fowler,  Re,  18  Blatebf.  437,  4  Fed.  Rep. 

303 927 

v.  State,  .85  Ind.  538 196 

Fowles  v.  Bowen,  30  N.  Y.  22 892 

Fox  v.  Clifton,  6  Bing.  354. 68 

v.  State,  3  Tex.  App.  329,  30  Am. 

Rep.  144 905 

V.  Territory,  2  Wash.  Terr.  297...     288 

Frain  r.  State,  40  Ga.  529 495 

Fralieh  v.  People, 65  Barb.  48.... 259,  346,  501 
Fralick  v.  Presley,  29  Ala.  457,  65  Am. 

Dec. 413 -.--  320 

Francis'  Case,  4  City  Hall  Rec.  12 797 

Frank  v.  State,  39  Miss.  705 495 

Franklin  r.  State,  29  Ala.  14 766 

Frazer  v.  McCloskev,  60  N.  Y.  337,  19  Am. 

Rep.  193..' - 

v.  People,  54  Barb.  300 470,  510-512 

Freeman  v.  Freeman,  31  Wis.  235...  649,  B50 
v.  People,  4  Denio,  9.  47  Am.  Dec. 

216. .636,  652,  660,  074,  077,  078 

French  r.  State,  12  Ind.  070,  74  Am.  Dec. 

229 683 

Fresh  v.  Gilson,  41  U.  S.  16  Pet.  327,  10 

L.  ed.  982 28.  42 

Friend  v.  Hamill.  34  Md.  298 462 

Friendly  v.  Lee,  20  Or.  202. 105 

Friery  v.  People,  5+  Barb.  319.... 327.  621,  626 
Fries  v.  Brugler,  12  N.  J.  L.  91,  21  Am. 

Dec.  52 300,  361 

Frith  v.  Sprague,  14  Mass.  455 53 

Fry  v.  Com.,  82  Va.  334 23S 

Fuller  ».  Smith,  74  Ga.  835 360 

v.  State,  1  Blackf.  03 405 

r.  State.  48  Ala.  273... 469 

Fulton  r.  Staff ord,  2  Wend.  483 325 

Funston  v.  Chicago,  R.  I.  &  P.  R.  Co.,  61 

Iowa,  4o2 4*1 

Furst  v.  Second  Ave.  R.  Co.,  72  N.  Y. 

547 418 


Gaddy  v.  McCleave,  59  111.  183 201 

Gadsby  v.  Dyer,  91  N.  C.  313... 373 

Gaffney  v.  People,  50  N.  Y.  410 362 

Gagahau  v.  People,  1  Park.  Crim.  Rep. 

378 806 

Gagg  v.  Vetter,  41  Ind.  22S,  13  Am.  Rep. 

322 180 

Gainer  v.  Com.,  .50  Pa.  319 ....157,  328 

Galbreath    v.    Eichelberger,    3  Yeates, 

515 301 

Gale  v.  People,  26  Mich.  157 340 

Galena  &  C.  U.  R.  Co.  v.  Fay,  16  111.  558, 

63  Am.  Dec.  323 363 

Gallagher  r.  State,  in  Tex.  App.  409....  13 
v.  State,  101  Ind.  411... '...  128 


Gallagher  v.  People,  120  111.  179 142 

r.  state,  3  Minn.  270 509 

Gandolfo  v.  State,  11  Ohio  St.  114.... 009-011 
Gardner  r.  Gardner.  22  Wend.  526,  34 

Am.  Dec.  340 25 

o.  Gardner,  2  Gray,  434 69 

Garfield  v.  State,  74  Ind.  60 187,  440 

Garlitz  r.  State,  71  Md.  293 185 

Garmire  r.  State,  l'J4  Ind.  444 773 

Garner  v.  Green,  8  Ala.  90 27 

v.  State,  38  Fla.  113 577,578 

Garrat  v.  Garrat.  4  Yeates,  244 69 

Gaskill  v.  Skene,  14  Q.  B.  664  • 84 

Gass  v.  Stinson,  2  Sumn.  610 824 

People,  14  111.433 498 

Gathercole  r.  Miall,  15  Mees.  &  W.  319..  884 

Gazley  v.  State.  17  Tex.  App.  267 831 

Gebbart  v.  Burkett.57  Ind.  378.. 358 

Gehrke  r.  State,  13  Tex.  508.. 147,  405 

Genet  ».  Mitchell,  7  Johns.  130 893- 

George  r.  Pilcher,  28  Gratt.  299 158 

Georgia  Cent.  R.  Co.  v.  Coggin,  73  Ga. 

6S9 27 

Georgia  M.  Mut.  L.  Ins.  Co.  v.  Gibson, 

52  Ga.  <M 116 

Gerrish  v.  Pike,  30  N.  H.  510 363 

Gibbesu.  Vincent,  11  Rich.  L.  323 23 

GibbS  c.  Huvler,  9  Jones  &  S.  190 370 

V.  Tucker,  2  A.  K.  Marsh.  219 240 

Gibson  v.  Green,  22  Ind.  422 200 

o.  State,  '.'1  Ala.  04 192 

v.  Williams  4  Wend.  320 331 

Gifford  v.  Ford,  5  Vt.  532.. 110 

V.  People,  87  111.210... 350,  B31 

Gilbert  v.  Thompson.  14  Minn.  544 260 

Gilchrist    v.    Brooklyn    Grocers    Mfg. 

Asso.,  59  N.Y.  499 107 

Giles  v.  State,  6  Ga.  270 S98 

Gill  v.  People,  3  Hun.  187. 352 

Gilliam  v.  State.  1  Head, 38 377 

Gilmore  v.  People,  124  111.  380.... 577 

Glacken  v.  Com..  3  Met.  iKv.i  233 706 

Glasgow  v.  Copeland,  8  Mo.  208 2:11 

Glass  v.  Beach,  5  Vt.  172.... 458 

v.  Bennett,  89  Tenn.  481 365 

Glover  r.  Com.,  SO  Va.  382... 238 

Goddard  v.  Smith,  0  Mod.  201 68 

Godding  v.  Orcutt,  44  Vt.  54... 102 

Godfrey  «•.  Schmidt.  1  Cheves,  Eq.  57...    22 

r.'State,  31  Ala.  323 631 

Gcx  rson  r.  Com.,  99  Pa.  388 73,210 

Goins  v.  State.  40  Ohio  St.  457. 

Golden  v.  State,  25  Ga.  .527 ..621,  626 

Goley  ■-.  State.  85  Ala.  333... 193 

Golliher  v.  Com.,  2  Duv.  163,  87  Am. 

Dec.  493  020 

Gomez  v.  State,  lo'Tei'.  Api>7 327 '.'.'.'. '.'.'.'.  771 

Goode  v.  State,  2  Tex.  App.  520 173 

r.  State,  70  Ga.  752... 017 

Goodhue  r.  People.  94  111.  37.. 401 

Goodman  r.  State,  1  Meigs,  195 163, 164 

Goodnow  ».  Hill,  125  Mass.  589 414 

Goodrich  v.  Weston,  102  Mass.  302, 3  Am. 

Rep.  409 80 

Goodwin  v.  State,  96  Ind.  550,  551,  560, 

4  Crim.  L.  Mas-  505 445,  575,  011 

Gordon  v.  Com.,  92  Pa.  210,  37  Am.  Rep. 

672 256 

v.  People.  33  N.  Y.  -501 143,  447,  503 

D.  State,  3  Iowa,  410.. 599 

G(  ird<  »n's  Case,  2  Maule  &  S.  582 2i  4 

Gorman  c.  Sutton,  32  Pa.  247 

Goss  r.  Turner,  21  Vt.  437 155,  156 

Gould  v.  Crawford,  2  Pa.  89. 288 

v.  Norfolk  LeadCo.,9  Cush.:i>s,  57 

Am.  Dec.  50 '. 27 

Goyernor  v.  Shelby,  2  Blackf.  26 195 

Gower  o.  Emery,  18  Me.  83... 281 

Grafton  n.  Grafton.  38  L.  T.  N.  S.  141 

Graham  v.  Com.,  16  B.  Mon.  587   

.  .635,  636,  640,  660.  678 

V.  Glover,  5  El.  &  Bl.  591 274 


XXXVI 


TABLE    OF    CASES. 


Graham  v.  People,  115  111.  566 259,  261 

v.  People,  63  Barb.  468. 316 

v.  Smith,  1  Edm.  Sel.  Cas.  267 880 

v.  State,  40  Ala.  659_ 160,  164 

Graintrer  r.  Stale,  5  Yerg.  459 '>'■  l 

Grantr.  Gould,  2  H.  BL  69 ..910,  915 

v.  People,  4  Park.  Crim.  Rep.  527..  616 
Grattan  r.  Metropolitan  L.  ins.  Co.,  80 

N.  Y.  281,36  Am.  Kep.  617 318 

13.  National  L.  Ins.  Co.,  15  Hun,  77,  881 

Graves  v.  Campbell,  74  Tex.  576 258 

13.  State,  12  Wis.  593 27 

V.  State.  45  N.  J.  L.  203 134 

V.  Stare,  25  Tex.  App.  333 740 

Gray  13.  Com.,  101  Pa.  386,  47  Am.  Rep. 

733 465,  469,  476 

V.  Gray,  3  Litt.  (Ky.)  465.... 370 

13.  JNellis,  6  How.  Pr.  290 886 

Greaves  13.  Greaves,  L.  R.  2  Prob.  &  Div. 

423 678 

Green  v.  Com.,  12  Allen,  170 405 

13.  Disbrow,  7  Lans.  3*1 85 

13.  Gilbert,  60  N.  H.  146 69 

v.  State,  12  Tex.  App.  51 71 

V.  State,  59  Md.  123,  43  Am.  Rep. 

542  204  255 

v.  Stated  A  rk\"  3047.7.7.7.7-7.7.--'  352 

v.  State,  3  Tex.  Apu.  656 448 

v.  State,  69  Ala.  6 577,  594 

13.  State,  21  Fla.  403,  58  Am.   Rep. 

670 804 

Greene  v.  State.  17  Tex.  App.  395....  183,  185 

r.  State,  79  Ind.  537 403 

Greenfield  v.  People,  85  N.  Y.  75,  39  Am. 

Rep.  636 .136,  192,  503 

v.  People,  13  Hun,  242 342 

Greenman  v.  O'Connor,  25  Mich.  30 415 

Greenoujrh  r.  Gaskell,  1  Myl.  &  K.  98...  299 
Greenwood  v.  Curtis,  6  Mass.  358, 377-379    864 

v.  Lowe,  7  La.  Ann.  197 .476,  511 

v.  State,  35  Tex.  587 283,  H52 

Greer  v.  State,  .53  Ind.  420 454,  455 

Gregg  r.  McDaniel,  4  Harr.  (Del.)  367...  253 

Gregory  v.  State.  80  Ga.  269 292 

Griffin  r.  Marquardt,  21  N.  Y.  121 454 

13.  State,  90  Ala.  596. .113,  575,  581 

v.  State,  7«  Ala.  29 826 

Griffith  v.  Williams,  1  Cromp.  &  J.  47...  783 
Griggs  v.  Houston,  104  U.  S.  553,  26  L.ed. 

840 231 

Grimes  v.  State,  63  Ala.  166.... 295 

Grinnell  v.  Phillips.  1  Mass.  530.. 2C6 

Grisham  v.  State,  19  Tex.  App.  504 616 

Grottkau  r.  State.  70  Wis.  470... 208 

Grove.  Be.  L.  R.  40  Cb.  Div.  210 863 

Grubb  v.  State,  117  Ind.  277 141 

Guenther  v.  People.  24  N.  Y.  100 404 

Guetig  u.  State,  66  Ind.  94,  32  Am.  Rep. 

99 635,  639,  770 

Guffu  v.  State,  8  Tex.  App.  187 37 

Guiteau's  Case,  10  Fed.  Rep.  161.. 674,  675,  677 

Gulerette  v.  McKinley.  27  Hun,  320 606 

Gulicku.  Loder,  13  N.  J.  L.  68 18 

Gunter  v.  State,  83  Ala.  96 770 

Gutehess  v.  Gutchess,  66  Barb.  483 321 

Guy  v.  Mead,  22  N.  Y.  162 10s 


H. 


Habersham  r.  State,  56  Ga.  61 .143.  189 

Hadjo  r.  Gooden,  13  Ala.  718 610 

Hasan  v.  Merchants  &  B.  Ins.  Co.,  81 

Iowa.  321 80 

Hailet'.  State,  11  Humph.  154 

193.444,624,  757 

Hair  v.  State,  16  Neb.  601. 352,  :354 

Ha*?h  13.  Munday,  12  111.  App.  539 326 

Halbert  v.  Stale.  3  Tex.  App.  656 448 

Halbrook  v.  State,  34  Ark.  511,  36  Am. 

Rep.  17. 804 


Hall  v.  Houghton,  37  Me.  411 370 

r.  Huff,  74  Ga.  409. 260 

v.  Naylor,  18  N.  Yr.  588,  75  Am.  Dec. 
269— - 711 

t\  Patterson.  51  Pa.  289 414 

11.  People,  6  Park.  Crim.  Rep.  671..  420 

v.  People,  47  Mich.  636 831 

y.  Stanley,  86  Ind.  219 70 

v.  State,  40  Ala.  698 298,  360,  598 

13.  State,  15  Tex.  App.  40 737 

13.  State,  8  Ind.  439 753 

Hallahau  v.  New  York,  L.  E.  &  W.  R. 

Co.,  102  X.  Y.  194... 481 

Hallaway  v.  Com..  11  Bush.  344... 569 

Halsey  v.  Siusebaugh,  15  N.  Y.  485 

97,  101,  107 

Halsted  v.  State,  41  N.  J.  L.  552,  32  Am. 

Kep.   247 905 

Ham  w.  State,  4  Tex.  App.  645 937 

Ham's  Case,  11  Me.  391. 805,  807,  809,  840 

Hamilton  v.  Eno,  81  N.  Y.  116  8&-891 

13.  People,  29  Mich.  173 .434,  439,  518 

13.  Reg.,9Q.  B.271 7(12 

13.  State,  35  Miss.  219 —  726 

Hammond  v.  Dike,  42  Minn.  273,  18  Am. 

St.  Kep.  506... -.  366 

v.  Wadhams,  5  Mass.  353 240 

Hammond's  Case,  2  Me.  35, 11  Am.  Dec. 

39 115 

Hampton  r.  State,  8  Ind.  336 408 

Hanawalt  v.  State,  64  Wis.  84,  54  Am. 

Rep.  588 861 

Hancock  r.  American  L.  Ins.  Co.,  62 

Mo.  26 .22,  23 

13.  Kellv,  81  Ala.  368 104 

13.  Wilson.  39  Iowa.  47 79 

Hancock's  App.,  64  Pa.  470 OS 

Hancock  Mut.  L.  Ins.  Co.  13.  Moore,  34 

Mich.  41 -    24 

Hand  v.  Ballon,  12  N.  Y.  543 38,  456 

Haney  13.  Com.  (Ky.)  5  Crim.  L.  Mar. 

47  537 

Hanford  v.  Obrecht,  49  111.  146 200 

Hanley  13.  Donohue,  116  U.  S.  1,  29  L.  ed. 

535 53 

Hannon  13.  State,  70  Wis.  448, 10  Crim.  L. 

Mag.  421 -  835 

Hanoff  13.  State,  37  Ohio  St.  178.... 349 

Hanover  R.  Co.  13.  Coyle,  55  Pa.  396 122 

Haurataan  v.  People.  91  111.  142 195 

Hanson  r.  Elton,  as  Minn.  493 258 

Hardtke  v.  State,  67  Wis.  552 597 

Hardy  v.  Norton,  60  Barb.  527 331 

13.  State,  7  Mo.  607 141 

Hargrove  v.  John,  120  Ind.  285 86 

Harrington  r.   Harrington,    107    Mass. 

329.... 09 

13.  State,  19  Ohio  St.  364 598,  601 

Harris  r.  Panama  R.  Co.,  3  Bosw.  7 147 

13.  People,  64  N.  Y.  148 170,  174.  795 

13.  State,  34  Ark.  469 594 

13.  State,  47  Miss.  318.... 594 

13.  State,  is  Tex.  App.  287 662 

13.  White,  81  N.  Y.  532 884 

13.  Woody,  9  Mo.  113 233 

Harris  in  r.  Bush,  5  El.  &  Bl.  344 890 

r.  Hanee.  37  Mo.  185 253 

V.  Harrison,  43  Vt.  417 509 

13.  State,  6  Tex.  App.  42 553 

Hart  13.  Com.,  85  Kv.  77,  7  Am.  St.  Rep. 

576 579,  581,  594 

v.  State,  2 Tex.  App.  39.... 4<i4 

Hartford  v.  Palmer.  16  Johns.  143 288 

Hartford  L.  &  A.  Ins.  Co.  c.  Gray,  80  HI. 

2s 225 

Hartman  r.  Com..  5  Pa.  60 900 

Hartung  r.  People,  4  Park.  Crim.  Rep. 

319. 253 

Harvey  r.  Pennypacker,  4  Del.  Ch.  454.    83 

Haskins  r.  People.  16  N.  Y.  344 506 

Hasson  c.  Com.  (Ky.)  10  Ky.  L.  Kep. 

1054 583 


TABLE    OF    CASES. 


xxx  vn 


Hastings  r.  Bangor  House  Proprs.,  18 

Me.  436.. 101 

0.  Palmer,  20  Wend.  225  320,329 

Hatton  v.  Robinson,  14  Pick.  416 281 

Hatin  v.  State,  13  Tex.  App.  383,  44  Am. 

Rep.  706 44 

Haven  v.  Wendell,  11  X.  H.  112 108 

Hawker  u.  Baltimore  &  O.   R.  Co.,  15 

W.  Va.  636,  36  Am.  Rep.  825.. ..108 
Hay  V.  Doug-las.  8  Abb.  Pr.  X.  S.  220...    261 

V.  Hayes,  56  111.342 261 

Hayes  p.  Cheatham,  6  Lea,  10 305 

r.  State,  58  Ga.  35 441 

Haymond  p.  Saucer,  84  Ind.  3 879 

Haynes  r.  state,  17  Ga.  465 570 

v.  Wright,  4  Havw.  (Teun.)  63....    240 

Hays  D.Bell,  16  Mo.  496 230 

Havslip  v.  Gymer,  1  Ad.  &  El.  162 131 

Bayward  v.  People,  96  111.  492 155(1 

Haywood  p.  State,  47  Miss.  1 738 

Hazzard  p.  Citizens  State  Bank,  72  Ind. 

130 -..-  195 

Head  p.  Sleeper,  20  Me.  314 230 

V.  Taylor,  Litt.  Sel .  Cas.  258 78 

Heady  v.  Vevay,  M.  S.  &  V.  Transp. 

Co.,  52  Ind.  117 180 

Heard  v.  State,  9  Tex.  App.  1 458 

o.  State, 24  Tex.  App.  103 771 

Hearttr.  Rhodes,  66  111.  351 195 

Heat  h  v.  Keyes,  35  Wis.  668 258 

Hebblethwaite  v.  Hepworth.  98  111.  132.  864 
Hector  v.  State,  2  Mo.  166,22  Am.  Dec. 

454 -.  492 

Heed  p.  State,  25  Wis.  421 753 

Heilboun,  Be,  1  Park.  Crim.  Rep.  429...  774 
Heilbronn,  Be,  1-'  X.  Y.  Leg.  Obs.  65....  933 

Heine  v.  Com.,  91  Pa.  145..; 598 

Heldt  v.  State,  20  Neb.  49:.',  57  Am.  Rep. 

835.... ...440,  495,  498,  523,  524 

Hemenway  p.  Smith,  28  Vt.  701 352 

Hemingway  v.  Garth,  51  Ala.  530 371 

Henderson  p.  State,  70  Ala.  23,45  Am. 

Rep.  72 520 

Hendricksou  p.  People,  M  X.  Y.  21,61 

Am.  Dec.  721. 447,  500 

Henning  p.  State,  106  Ind.  386,  55  Am. 

Rep.  756 251 

Henrich,  Re,  5  Blatchf.  414..932,  933,  912,  944 

Henry  v.  State.  7Tex.  App.  388 171 

v.  State,  33  Ga.  441 626 

V.  State,  11  Humph.  224 771 

Hensley  v.  State,  107  lad.  587  616 

Henwood  p.  Harrison,  L.  R.  7  C.  P.  606    891 

Hermann)'.  Butler,  59  111.  225 172 

Herrick  r.  Smith,  13  Hun.  448... 374 

Herris,  Be,  32  Fed.  Rep.  583  933,  939 

Hess  v.  Wilcox,  58  Iowa,  380.. 158 

Hester  v.  Com.,  85  Pa.  139 210 

Hibbs,  Ex  parte,  26  Fed.  Rep.  421. 935 

Hice  v.  Cox,  34  X.  C.  315 370 

Hickman  r.  Jones,  76  U.  S.  9  Wall.  201, 

19  L.  ed.  553 229 

Hickox  p.  Tallman,  38  Barb.  60s :;y 

Higdon  p.  Heard.  14  Ga.  256  ...  296,  297,  302 
Higgins  v.  People,  58  X.  Y.  379  827,  829,  834 

Higgs  v.  Higgs,  11  Week.  Rep.  154 08 

Higman  p.  Ridgway,  10  East,  120.    ..  137 

Hilands  p.  Com.,  5  Cent.  Ren.  267, 114  Pa. 

372 617 

Hilderbrand  p.  People,  56  X.  Y.  394,  15 

Am.  Rep.  435 730,  736 

Hildreth  p.  Mclntire,  1  J.  J.  Marsh.  206    204 

v.  Shepard,  65  Barb.  265 281 

Hill  v.  Com.,  2  Gratt.  594.. 191,  542 

v.  Crompton,  119  Mass.  376 70 

V.  Goode,  18  Ind.  207 371 

V.  Goodrich,  32  Conn.  588 931 

V.  People,  1  Colo.  452... 123 

v.  People,  26  Mich.  496. 407 

V.  State.  41  Ga.  184         529 

Billhouse  v.  Dunning,  8  Conn.  391  ...      898 
Hillie  v.  Wylie,  26  Ohio  St.  574 363 


Hinde  v.  Longworth,  24  U.  S.  11  Wheat. 

199,  6  L.  ed.  454.. 260 

Hines  v.  Driver,  100  Ind.  315 244 

p.  State,  8  Humph.  597 405 

V.  State,  24  Ohio  St.  1:34 616 

Hinson  v.  State,  66  Miss.  532.. 578 

Hinton  v.  Whitaker,  101  Ind.  344 249 

Hitchcock's  Case,  6  City   Hall   Rec.  43 

„  700,  711,  714 

Hoagland  v.  Moore,  2  Blackf.  167 240 

Hobbs  v.  Tippecanoe  County  Conns., 

116  Ind.  376 249 

Hochrieter  v.  People,  2  Abb.  App.  Dec. 

363 501 

Hodge  P.  State,  26  Fla.  11. 575,  584,  675 

Hoffman  p.  Kemerer,  44  Pa.  453.  606 

Hogshead  r.  State,  120  Ind.  327 198 

Holcomb  r.  Holoomb,  28  Conn.  177  ...    289 
Holdsworth   0,   Dartmouth,  ^  Mood.  & 

R.  153.. 373 

Hollenbeck  p.  Rowley,  8  Allen,  473  153 

Holler  p.  State,  37  Ind.  57,  10  Am.  Rep. 

„  ,  "4 580,594 

Holhday  v.  Thomas,  90  Ind.  398  •.•;,.; 

Hollingsworth  p.  Duane,  4  U.  S.  4  Dall. 

353, 1  L.  ed.  864 252 

Hollis  v.  State,  27  Fla.  387  ..  814 

H0II3   L'.  State,  55  MiS3.  424 578 

Holmes  p.  Hunt,  122  Mass.  505,  23  Am. 

Hep.  61 39 

r.  Johnson.  42  Pa.  159. 22 

v.  People,  10  111.  478. 261 

p.  State,  20  Tex.  App.  509  107 

0.  State.  9  Tex.  App.  313 4  16 

Holsenbake  p.  state,  4">  Ga.  44 491 

Holt  r  State,  9  Tex.  App.  571 583,758 

Holten  v.  Lake  County  Comr3.,  55  Ind. 

191 .....     ..  .  1*1 

Holtz  p.  Stare.  76  Wis.  99. 902 

Homansr.  Corning,  60  N.  H.4is  454 

Home  Ins.  Co.   p.   Weide.   78   V.  S.   il 

Wall.  440,  20  L.  ed.  198  16 

Homer  p.   Wall  is,    11   Muss.  30,  93  Am. 

Dec.  169    115 

Hood  0.  Hood,  2  Grant,  Cas.  229 27 

Hoc iker  r.  Ri  igers,  6  <  !< »w.  -",77  .  165 

Hooper  v.  Moor  ■.  50  X.  C.  130  53 

Hopt  v.  People,  114  U.  S.  488,  29  L.  ed. 

183 ...    414 

r.  Utah,  104  U.  S.  631,  26  L.  ed.  873, 

110    U.    S.  574,    28    L.    ed.   262 

...622,624,  491 

Hope  v.  People,  Si  X.  Y.  418.. 126 

Hope's  ( !as  1,  1  City  Hall  Rec.  150.  ..469,  476 

Hopewell  v.  De  Pinna,  2  Campb.  113 23 

Hopkins  p.  Com.,  50  Pa.  9,  88  Am.  Dec. 

518 584 

Hopper  v.  Ashley.  15  Ala.  465 113 

Hopps  v.  People,  31  111.  385,  8:^  Am.  Dec. 

231 26,  635,  644,  645,  662,  673.  678 

Horford  v.  Wilson,  1  Taunt.  12 245 

Hornbeck  0.  State,  35  Ohio  St.  277,  8r) 

Am.  Rep.  608 826,830 

Home  v.  M'Kenzie,  6  Clark  &  F.  728  99 

Horton  0.  State,  53  Ala.  4^8. 3-53 

Hough  r.  Cook.  69  111.581 70 

Houghtaling   v.  Ball,  19  Mo.  84,  59  Am. 

Dec.  331 230 

Houghton    r.  Jones,  68  U.  S.  1  Wall.  702, 

17  L.  ed.  503 332 

House  v.  Metcalf,  27  Conn.  638.. 167 

Housh  p.  People,  75  111.487 20 

Houston  r.  State.  13  Tex.  ApD.595     ....  404 
Hovey  v.  Chase.  52  Me.  304,  S3  Am.  Dec. 

514 lits 

v.  Grant.  52  X.  II.  569 69 

Howard,  Be,  26  Vt.  208     10 

Howard   r.    Daly,  01  X.  Y.    302,  lo  Am. 

Rep.285 83,  '1 

C.  Moot.  64  N.  Y.  262 38,  155 

p.  Patrick,  :s  Mich.  ;'.'.">      354 

(•.Smith,  l  Jones  &  8.  12-:  233 


xxx  vm 


TABLE    OF   CASES. 


Howard  v.  State.    23  Tex.  App.  265,  25 

Tex.  App.  686 575,  576,  585,594 

13.  State,  50  Ind.  190 687 

v.  State,  32  lad.  478 758 

Howard  Exp.  Co.  v.  Wile,  64  Pa.  201 232 

Howard  F.  &  M.  Ins.  Co.  v.  Corniek,  24 

111.  455 439 

Howell  13.  Huvck,  2  Abb.  App.  Dec.  423    45 
13.  State,  5Ga.  48 - 576 

Howley  v.  Whipple,  48  N.  H.  487  --—^  ^ 

Hoyes'  Case,  39 Ga".  718  '.'. -----  581 

Hoyt  v.  Newbold,  45  N.  J.  L.  219,  46  Am. 

Rep.  767 22 

Hubbellt'.  Grant.  39  Mich.  641 281 

Huber  v.  State,  57  Ind.  341 745 

13.  Teuber,  3  McArth.  485 224 

Hudelson  v.  State,  94  Ind.  420,  48  Am. 

Rep.  171 440 

Hudgins  r.  State.  2  Kelly  <Ga.)  181 577 

Hudson  v.  Com.,  2  Duv.  531 504 

Hudspeth  v.  State,  50  Ark.  534 770 

Huff  v.  Bennett,  6  N.  Y.  337 99 

Huffman  v.  Click,  77  N.  C.  55 14o 

Hughes  v.  Ellison,  5  Mo.  110 231 

v.  Howard,  3  Har.  &  J.  9 240 

13.  Montv,  24  Iowa,  499 195 

v.  State,*  27  Tex.  App.  127_ 261 

v.  Westmoreland  Coal  Co.,  104  Pa. 

207 - 332 

Hughev  v.  State,  47  Aia.  97 594 

Huidekoper  v.  Cotton,  3  Watts,  56 410 

Hull  v.  Alnro,  2  Disney  (Ohio)  147 252 

■c.  State,  93  Ind.  128 369,  371 

Humphrey  v. Cottley,  4  Cow.54 6S 

Humphreys  i\  State.  45  Ga.  190 626 

Humphries  v.  Parker,  52  Me.  502 321 

Hunn  13.  HunD,  1  Thorn".  &  C.  499.  501..  850 

Hunt  t\  Bennett,  19  N.  Y.  173 884 

13. Fish,  4  Barb. :  24 370,373 

13.  State,  81  Ga.  140  251 

13.  State,  9  Tex.  Ap,>.  404 404 

Hunter  i\  State,  40  N.  J.  L.  495.. 125,  128,  328 

v.  State.  8  Tex.  App.  75 167 

v.  Wetsell,  84  N.   Y.  549,  38  Am. 

Rep.  544 370 

Huntingdon  &  B.  T.   M.   K.  A:  C.  Co.  r. 

Decker,  82  Pa.  119 418 

Huntley  v.  Whittier,  105    Mass.  392.  7 

Am.  Rep.336 94 

Huntsman  v.  Nichols,  116  Mass.  521  157,  328 
Hurd  r.  People,  ~'5  Mich.  405,  406,  415  . 

124,  407,  529,  589 

Hurlburt  13.  Bellows.  50  N.  H.  105 373 

Hurlbut .13.  Meeker,  104  III.  541 332 

Hurley  v.  State.  29  Ark.  17 354 

13.  State,  4  L.  R.  A.  161,  46  Ohio  St. 

320 372 

Hussey  13.  State.  87  Ala.  121  534,  604 

Hutchinson  13.  Com..  82  Pa.  472 251 

Hyatt  13.  Johnston.  91  Pa.  200 231 

Hyde  13.  State,  16  Tex.  445,  67  Am.  Dec. 

632 165 

Hyltoni3.  Brown,  1  Wash.  •'.  C.  343 46 

Hynds  i\  Hays,  25  Ind.  31 195 

Hynes  13.   McDermott,  82  X.   \.  41,  37 

Am.  Rep.  538 152,  154 


I. 

Ihinger  13.  State,  53  Ind.  251 27 

Indiana,  B.  &  W.  R.  Co.  13.  Finnell,  116 

Ind.  414  249 

Indianapolis  v.  Scott.  72  Ind.  196 180 

Indianapolis,  P.  &  C.  R.  Co.  v.  Anthony, 

43  Ind.  183 258 

Inglis  v.  Inglis,  15  Week.  Rep.  1093 70 

Ingram  r.  State,  67  Ala.  67 375 

Inman  13.  Foster,  8  Wend.  602 886 

Inskeep  13.  Inskeep,  5  Iowa,  204,203 849 

Iryin  v.  State,  13  Mo.  306 408 


Irvine  v.  Cook,  15  Johns.  239 418 

Irvinson  13.  Van  Riper,  34  Ind.  148 260 

Isaacs  r.  State.  25  Tex.  174 570 

Ives  v.  Hamlin,  5  Cush.  534 321 


J. 

Jackmanv.  State,  71  Ind.  149 188 

Jackson  13.  Browner,  18  Johns.  39 137 

v.  Cadwell,  1  Cow.  622 260 

1).  Com.,  19  Gratt.  656 160,  164,  540 

13.  Etz,  5  Cow.  319 24,  137 

13.  Frier,  16  Johns.  193 43 

13.  Hardin,  83  Mo.  175 712 

13.  Humphrey,  1  Johns.  498 789 

13.  King,  4  Cow.  207, 15  Am.  Dec.  354    25 

13.  Lewis,  13  Johns.  504 824 

13.  Parkhurst,  4  Wend.  369 261 

13.  People.  3  111.  231. 805 

v.  <state*  78  Ala.  471 60 

1).  State,  11  Tex.  261 203 

13.  State,  9  Tex.  App.  114.. 546 

i).  State,  Horrigan  £  T.  Cas.  on 

Selt-det.  476 ._ 569 

13.  Tallmadge,  4  Cow.  450 159 

v.  Van  Dusen,  5  Johns.  15S,  4  Am. 

Dec.  330 25 

13.  Warford,  7  Wend.  66 16 

Jackson's  Case,  1  Lew.  C.  C.  270 796 

Jacobson  i\  Hosmer,  76  Mich.  234 932 

James  13.  State.  45  Miss.  572. 439 

Jane  13.  Com..  2  Met.  (Ky.)  30 440 

Janvrin  r.Scammon,  29  N.  H.  280.. ..296,  300 

Jaynes,  Exvarte,  7oCal.638._ 264 

Jeiierds  v.  People,  5  Park.  Crim.  Kep. 

522 500 

Jefferson  13.  People,  101  N.  Y.  19 884 

Jeffepsonville,  M.  &  I.  R.  Co.  13.  Bowen, 

40  Ind.  545 180 

Jeffries  v.  Randall,  14  Mass.  205 252 

Jenkins  13.  North  Carolina  Ore  Dressing 

Co.,  65  N.  C.  563 245 

V.  Putnam,  106  N.  Y.  272 874,  877 

13.  State,  41  Tex.  128 208 

1).  State,  41  Miss.  582. 467 

13.  State,  62  Wis.  63 544 

Jenkinson  13.  State,  5  Blackf.  465 316 

Jernigan  13.  State,  81  Ala.  58.. 43.44 

Jerome  r.  Whitney,  7  Johns.  321 16S 

Jessup's  Estate.  Re,  6  L.  R.  A.  504,  81 

Cal.  403 85 

Jeter  r.  Jeter,  36  Ala.  391 850 

Jewell  v.  Jewell.  42  U.  S.  1  How.  219,  232. 

11  L.  ed.  10s.  114... 80 

Jewetti'.  Banniutr,  21  N.  Y.  27 501 

Joe   13.  State,  38  Ala.  422 435,  496 

Johnson  v.  Adleman,  35  111.  265 260 

13.  Arnwine,  42  N.  J.  L.  451,  30  Am. 

Rep.  527 43 

r.  Birley,  5  Barn.  &  Aid.  540 68 

v.  Brown.  57  Barb,  lis 886 

13.  ( '<  im„  85  Ky.  377,  4  Crim.  L.  M  ig. 

002.  912 465,  470 

V.  Evans.  8  Gill.  155... 198 

V.  Filkintrton.  39  Wis.  62  70 

13.  Hudson,  7  Ad.  &  El.  233.. 884 

13.  Johnson.  14  WeDd.  637 850 

13.  Miller,  63  Iowa,  529,  50  Am.  Rep. 

758 901,  904 

V.  Pe<  >ple.  113  III.  99 723 

13.  State,  17  Ala.  624 127.501 

v.  State,  14  Ga.  55 229,  568 

13.  State.  27  FIa.245 252 

13.  State,  28  Tex.  App.  17 283 

v.  State,  1  Tex.  App.  3:33 352 

v.  State,  76  Ga.  76... 404 

13.  State.  18  Tex.  App.  385 550 

13.  State,  66  Miss.  189 577 

13.  State,  29  Ark.  31,  21  Am.  Rep.  154  619 

13.  State.  41  Tex.  65 703 

13.  State.  17  Ohio,  593 830,  8:34,  839 


TABLE    OF    CASES. 


XXXIX 


Johuston  r.  Com.,  85  Pa.  54,  27  Am.  Rep. 

622... 750 

D.Johnston,  Wright  (Ohio)  454...  850 

U.Mason,  27  Mo.  511. 159 

Jones  v.  Angell,  95  Ind.  376 198 

v.  Bewicke,  L.  R.  5  C.  P.  32 68 

v.  Com.,  75  Pa.  403 

193.  444,  448,  524,  625,  757 

v.  Holland,  8  Met.  377,  41  Am. 

Dec.  525 -  455 

V.  Jones,  45   Md.  144 861 

v.  Littler,  7  Mees.  &  W.  423 883 

V.  People,  2  Colo.  351 252 

V.  Statu,  13  Tex.  1,  62  Am.  Dee.  550 

20,37,253,618 

V.  State,  14  Tex.  App.  85 197 

v.  State,  5  Tex.  App.  86 240 

V.  State,  48  Ga.  163 292 

r.  State,  65  Miss.  179 518 

V.  State,  71  Ind.  66 530 

v.  State,  76  Ala.  9 604 

V.  Stroud,  2  Car.  \-  P.  196 58 

V.  Turpin,  6  Heisk.  181 256 

v.  United  States,  5  Cranch,  C.  C. 

653 703 

Jordan  v.  Osgood,  109  Mass.  457 73,  211 

V.  State,  22  Ga.  545 125 

v.  State,  81  Ala.  20 295 

V.  State.  32   Ml-.-.  382 493 

v.  Wilkins,  2  Wash.  C.  C.  482 46 

Joseph.  The,  12  U.  S.  8  Cranch,  451,  3  L. 

ed.  621 570 

Joslin  r.  Grand  Rapids  Ice  &  C.  Co.,  53 

Mich.  323 414 

Judge  r.  State,  58  Ala.  406.     447 

Judy  v.  Johnson,  16    Ind.  371 371 

Jumper tz  p.  People,  21  111.  375 109 

Juneau  Bank  v.  McSpedan.  5  Biss.  04.  .  nil 
Jupitz  v.  People,  34  111.  510. __ 598,  601 

K. 

Kaelin  v.  Com.,  84  Ky.  a54 3S0.  405 

Kaine,  Ex  parte.  3  Blatchf.  1 _y34,  941 

Kalk  v.  Fielding,  50   Wis.  339 45 

Kalle  v.  People,  4  Park.  Crim.  Rep.  591 

156.    158 

Kane  v.  People.  8  Wend.  203 401 

Kansas  Pac.  R.  Co.  v.  Pointer,  9  Kan.  620 

I 

Kaolatype  Entrraving  Co.  v.  Hoke.  30 

Fed.  Hep.  444 13 

Kautfman  r.  People,  11  Hun.  82 S67 

Kaufman  v.  State,  49  Ind.  248. 6*7 

Kean  c.  Com.,  10  Bush,  190,  19  Am.  Rep. 

63 352,  387 

r.  People,  11  Colo.  258 641 

Kearney  v.  State,  48  Md.  16. _ 4U3 

Keegan  v.  Geraghty,  101  111.26 863 

Keely  r.  State,  14  Ind.  36 727 

Keenan  v.  Com.,  44  Pa.  55,  84  Am.  Dec. 

414. _ 193.  444.  448,  624 

Keener  v.  State,  18  Ga.  194,  63  Am.  Dec. 

269. 252.  407,  581,  584,  5:14,  766 

Keenholts  u.  Becker,  3  Den io,  346 887 

Kehoe  v.  Com.,  85  Pa.  127 529 

Reiser  v.  State,  83  Ind.  234 __ 196 

v.  Topping,  72  111.229 167 

Keitler  r.  State,  4  G.  Greene,  291 21  '5 

Keller  r.  State,  51  Ind.  11 703,  70S 

Kelley,  Re,  25 Fed.  Rep. 268,2  Low.  L>e< . 

33:i 930,   933 

Kellogg  v.  Kellogg,  6  Barb.  116... 159 

v.  State,  26  OhioSt.  15 719 

Kelly,  Be,  26  Fed.  Rep.  852. 932,  944 

Kelly  0.  lire  m  >k-,  25  Ala.  523 326 

v.  Com.,  1  Grant.  Cas.  4<4.  193,  444.  624 
v.  Jackson,  31  U.  S.  6  Pet.  622,  8  L. 

ed.  523.. .35.  36,  436 

V.  People,  115  HI.  583  251 

v.  People,  6  Hun.  509 738 

v.  state,  3  Smei  les  &  M.  518.     638 


Kelseau.  Fletcher,  48  N.  H.  283 108 

Kemp  0.  State,  11  Tex.  App.  174 771 

Kendall  v.  Brown,  86  111.  3*7 194 

v.  State,  8  Tex.  App.  569 569 

Kendrick  r.  state,  55  Miss.  436 771 

Keniston  v.  Rowe,  16  Me.  38 861 

Kennedy  v.  Com.,  78  Ky.  447 13 

v.  Com.,  2  Va.  Cas.  510 206 

V.  Com.,  14  Bush,  340 252,  572,  758 

V.  Gitford,  19  Wend.  293 886 

v.  People.  39  N.  Y.  245 405,  446,  7:39 

v.  People,  40  111.  488 439 

V.  State,  9  Tex.  App.  399 16S 

v.  Cpsbaw,  64  Tex.  411 116 

Kenny  v.  People.  31  N.  V.  330 621,  626 

c.  Van  Horn,  1  Johns.  394 _.    46 

Kenrick  v.  Keurick,  4  Hagg.  Eccl.  Rep. 

114 854 

Kensingtons.  Inglis,  8  East,  273 99 

Kent  v.  People,  8  Colo.  563 

19.   124,262,  425, 

Kentucky  v.  Dennison,  65  D.  S.  24  How. 

66,  It;  L.  ed.  717 10,  928,  937, 

Kenyou  v.  People,  26  X.  V.  203,  M  Am. 

Dec.  177 510, 

-  "4.  867,  868,  870,  874. 677 

Ker,  Exparte,  Is  led.  Rep.  167 

Ker  v.  Illinois.  119  U.  S.  436,  30  L.  ed.  421 
930    938 

V.  People,"  110  "ill!  627,51"  Am.  Rep.' 

706 930- 

Kernin  r.  Hill.  37  111.209 

Kerrains  v.  People,  60  X.  Y.  221,  14  Am. 

Rep.  158 454, 

Keutgen  v.  Parks,  2  Sand f.  60 

Keyes  v.  Mate.  122  Ind. 527 

Kibler  i'.  Mcllwaine,  16  S.  C.  551 

Kidder  v.  Stevens,  60  Cal.  415 

Kilpatrick  v.  Com.,  31  Pa.  193 

Kiuchelow  v.  State.  5  Humph.  9 

King  v.  Atkins,  33  La.  Ann.  1057. 

v.  t.'i  im„  2  Ya.  Cas.  78 

r.  D'Eon,  1  W.  Bl.  510,  3  Burr.  1513 
..165, 

r.  Donahue.  110  Mass.  155,  14  Am. 
Rep.  589 

V.  Lynn.  2  T.  R.  733  

v.  Paddock,  18  Johns.  141 

V.  Root,  4  Wend.  113 

c.  State,  4  Tex.  App.  256,  30  Am. 
Rep.  130.    

v.  State,  40  Ala.  314 

v.  Stare.  55  Ark.  801 

v.  State,  89  Ala.  14o _ 

r.  Worthington,  73  HI.  161.... 

Kingenn  c  State.  45  Ind.  51- 

Kingsbury  r.  Moses,  40  X.  H.  222. 

Kinne  c.  Kinne,  9  Conn.  102... 

Kinney  v.  State.  21  Tex.  App.  34->  

Kinsley  v.  Morse,  40  Kan.  577 

Kirschner  v.  State,  9  Wis.  140 

Kirwin  v.  Joins,  3  Hodges,  230 

Kistler  v.  State,  54  Tnd.  400. 

Kizer  v.  State,  12  Lea.  564 

Klein  v.  Hottheimer,  132  U.  S.  367.  33  L. 
ed.  373 

v.  Russell,  86  U.  S.  19  Wall.  439,  22 

L.  ed.  116 

Klimple  v.  Boelter,  44  Minn.  172 

Kliuck  u.Colby,  46  N.Y.  427  ....889,890, 

Klink  v.  People.  11;  Colo.  467 

Klock  v.  State.  60  Wis.  574 

Knapp  0.  Schneider,  24  Wis.  70 ... 

Knickerbocker  i\  People.  43  N.Y.  177,  1 

Cow.  Crim.  Rep.  287 
Knickerbocker  L.  Ins.  Co.  i>.  Ecclesine, 

6  Abb.  Pr.  N.  S.  30 

Knitner  v.  State,  45  Ind.  175... 

Knoll  r.  State,  55   Wis.  249.  42  Am.  Pep. 

704  .  769, 

Knopf  r.  State.  -I   Ind.  316 

Koerner  v.  State,  98  [nd.  7. 


684 
942 

879 
930 

940 

940 
109 

894 
370 
346 
326 

27 
771 

76 
325 
448 

166 

114 

742 

22 

894 

240 
498 
578 
584 

80 
758 
415 
240 
173 
258 
300 

68 
600 
181 

258 

44 
198 
894 
794 
330 


..  734 


292 

113 
196 


xl 


TABLE    OF   CASES. 


Pi  56 

te.  -  rex.  App.  l  l""' 

...  5  Bush,  •'  i     626,  635, 

L. 

u  v.  People,  M  N 

30,  t<»4 
i  &  B.  R.  i  ".  o.  Doak,  52  Pa. 

198 
: 
Lafayette,  B.&  M.R.  Co.v.  Winslow,66 

III.  219  ........       411 

ithern  Underwriters' 
\--   .,88  N.C. 

Laird  v.  i  ampbell,  H*i  Pa.  159 97 

.     i).  Trunin.:;  Mo.  529 22 

14U.  S.218. 29L.ed.94    53 

-     wart,2  Ohio,  230 363 

i  -.1  hi. mi.  29  !..  J.  i  h.  286 .-    23 

Lam! 

I  e,  9  <  ow.  578  .... 

Lea,  575  

144,623 
u.  Washington   L.  Ins.  Co.,  62  Mo. 

121. -----    23 

I  12.j 

.  1::    ri  s.  H52  441 

Landsberger  p.  Gorham,  5<  al.  150  281 

Landwerlin  v.  Wheeler,  106  Ind.  26] 

.   Bryant,  9  Gray,  245,  69  Am. 
Dec.    282 

e,  50  Barb.  265        626,  628 
Lang  v.  State,  84  3,  766,  770 

1  parte,  25  Vt.  682 265 

Lte,  95  Ind.  Ill 764 

'.   Wright   (Ohio) 

Langtry  o.  Stat.-,  30    \    i.  536 805 

ley,  13  Abb.  Pr.  272 415 

Kelly,  35  Vt.  195  102 

,     o.  Huey,  13  II.  Mon.  436  ..     ....  158 

Larrison  r.  Larrison,  20  N.  J.  Eq.  100...  819 

11. 789 

i  .   S.   Sup.   Ct.) 

April  3.  1893 930 

516... 

Latham  v.  Reg.,5  Best.&S.63o 719 

!  ,2  Swab.  &  T.  524 

Latti  :  .1  Iowa,  1,  63  Am.  Dec. 

Laugblin  v.  Chicago  &  N.  W.  R.  Co.,  28 

3.  204,  9  Am.  Rep.  493 27 

te,  l-  '  hum.  99,  51  Am.  D<  c. 
Ill  634 

Lawn  •                    er,  5  Wend.  301...   108,  370 
D.  Lanning,  1  Ind.  194 

-  te.  84  Ala.  4J4  ... 575 

:  d  v.  Bacbman,  81  N.  V.  616 45 

-  te,  17  Tex.  App.  292 

Ala.  65,56  Am.  Dee.  182 

!       •  Mass.  241 

.  1  <  oldw.  L* 
v.  J 

; 

1  Humph.  144  

- 

.  \.  V.  1 84 

92V 

r  Wreck.  \-  Tr 

.    ..152,  -.54 

Stal 8:t2 

L  11   Mo.  114   231 

598 

i    ...  720 

Drake,  1  ( ihio  St.  286  ...   ..  14-,  325 

'. 
Lehigh 

Lpp.  li  I.  51 



Lciber  v.  Com.,  9  Bush,  11 53? 

Leigh  r.  People,  113  III.  372. 440 

er  o.  Wilke,  i  Serg.  &  B.  203....  358 

Leighton  o.  People,  88  N.  Y.  117 593 

r.  Sargent,  31  N.  H.   119,  34  Am. 

D  C.  324 253 

Leland,  Re, :  Abb.  Pr.  \.  S.  64... 945 

Lelandc.  Bennett,  5  HiU,  286.. 320 

V.  Wilkinson,  31  LT.  S.  6  Pet.  317,  8 

L.  ed.  112.... 56 

Lemons  v.  State,  4  W.  Va.  755,  6  Am. 

Rep.  293 611 

Lenox  v.  Fuller,  39  Mich.  268 363. 

.  State,  n  Ala.  lit) Ml 

Lesau  v.  Maine  Cent.  R.  Co.,  77  Me.  87  ..  232 

L r  o.  Peo]  le,  12  Hun,  668 703,708 

Letton  v.  Graves,  26  Mo.  250 260- 

Levy  V.  State,  28  T<  \.  App.  203, 19  Am. 

St.  Rep.  826.. 578-580 

Lewer  o.  Com..  15  Serg.  &  R.  93 739 

Lewis  r.  Blair,  3  Irvine,  16 501 

Eagle  Ins.  Co.,  hi  Gray,  508 289 

r.  Payn,  4  Wend.  423 240 

v.  People,  82  111.  104 861 

r.  Ryder,  13  Abb.  Pr.  1 159 

r.  State,  H  Head,  127 448 

v.  State,  88  Ala.  11  585 

Liebman  r.  Pooley,  l  stark.  107.. 81 

Lieutenant    Kiev's    Case,  2    DeLolme, 

Eng.  Const.  982. 911 

Lightfoot  r.  People,  16  .Mich.  507 328 

Lightner  r.  Wike,  4  Serg.  &  R.  203 108 

Liles  0.  State,  30  Ala.  24,  08  Am.  Dec.  108 

._. ...-127,  501 

Lilienthal's  Tobacco  r.  United  States, 

97  U.  S.  268,  24  L.  ed.  905 35 

Lilly  v.  Waggoner.  27 IU.  395  25 

Linard  v.  Crossland,  10  Tex.  4*12.. 258 

Lincoln  r.  French,  105  U.S.  614,26  L.  ed. 

28 

Lindenberger  r.  Beall,  19  U.  S.  6  Wheat. 

I  14,  5  L.  ed.  216.. 79 

Lindsay  o.  People,  63  N.  Y.  143. 

514,  515,521,770 

Lingo  r.  State,  29  Ga.  470. 578,  594 

Linsley  v.  Lovely,  26  Vt.  123. 325 

i.  State,  1  Tex.  App.  739. 538 

Littler.!  om.,  25  Gratt.  921 204 

\  Mate,  6  Baxt.  493... 579,  594 

l.i\  ingston  t>.  i  lorn.,  14  Gratt.  592 405 

r.  Kiersted,  10  Johns.  362. 288 

Lloyd  v.  Newell,  8  N.  J.  L.  365 240 

Locke  r.  State, 32N.  H.  106. 737 

Loeffner  r.  State.  10  Ohio  St. 598 

165.  636,641,678 

Logan  o.  State.  17  Tex.  App.  50 594 

.    p.  State.  3  Ilei.-k.  414 290 

Logue  o,  Com.,  38  Pa.  265,  80  Am.  Dec. 

481 570,572,573 

Long  v.  Davis,  18  Ala.  801 353,354 

v.  Drew.  114  Mass.  77 46 

15  lnd.488 206 

V.  Stale.  56  In.!.  186.. 246 

v.  State,  86  Ala.  43 584 

Loomis  v.  Edgerton,  19  Wend.  420 729 

-.  People, 67  X.  ?.322,23Am.  Rep. 

123 ...777,  723,  730,  736 

Lord  Me',  in  re'-  Case,  4  How.  St.  Tr.  654  911 
Lord  Melville's  Case.  29  How.  St.  Tr.  763      8 

Lord  r.  State,  17  Neb.  526.... 811 

o.  Steineman,  1  Met.  204 23 

Loss*  n  I'.  Mate.  62  Ind.  437 441 

Lott  v.  .Macon.  2  Strobb.  L.  178  253 

Louis,  The.  2  Dod.  Adm.  264 574 

ST.  A.  i:  C.  K.  Co.  r.  Falvev, 

104  Ind.  409 "     259 

V.  Grantham,  104  Ind.  353 260 

Love   v.  Masoner,  6  Baxt.  24,  32  Am. 

Rep.  522 879 

r.  Stale.  22  Ark.  336 .495,  496,  499 

li  ii  i\  Loveden,  2  Hasrg.  Consist. 
Rep.  2 B51,  854 


TABLE    OF    CASES. 


xli 


Lovell  v.  State,  12  Ind.  18 842,851 

Lovinger  v.  Madison  Fii-st  Nut.  Bank, 

81  Ind.  354 258 

Low  u.  Hall,  47  X.  Y.  104 708 

Low's  Case,  4  Me.  439 203 

Lowe  v.  Lowe,  40  Iowa.  220 320 

o.  Ryan,  94  Ind.  450 24!/ 

c.  State,  86  Ala.  47 354 

v.  State,  88  Ala.  8 491 

Lowenberjr   v.  People,  5   Park.  Crim. 

Ren.  414 601 

Luby  v.  Hudson  River  K.  Co.,  17  N.  Y. 

131..... 108 

Lucas  v.  State.  23  Conn.  18 281 

v.  State,  27  Tex.  App.  322 408 

Luce  v.  Hoisington.  56  \  t.  430 69 

Luco  v.  United  States.  64  V.  S.  2:3  How. 

515,16  L.  ed.  545. 154 

Ludwigr,  Re,  32  Fed.  Hep.  774 932 

Lumpkin  v.  State.  68  A  la.  56 516 

Lund  «.  Tyngsborouffh,  9  Cush.  36. .  .122,  128 

Lynch  v.  Coin..  77  Pa.  205 635,  638 

V.  State.  9  Ind.  541 330 

Lyon  v.  Lyman,  9  Conn.  55 115 

Lyons  r.  People,  68  111.  272 404 

Lytle  v.  State,  31  Ohio  St.  196 626 


M. 

Mabbett  v.  White,  12  N.  Y.  442 360 

McAdams  v.  State,  8  Lea.  463 249 

13.  State.  25  Ark.  405.. 405 

McAdory  r.  State, 62  Ala.  154 499 

McAllister  c.  state.  17  Ala.  434.  52  Am. 

Dec.  ISO.. 635,  640,  674 

McCall  v.  United  States,  1  Dak.  321 49 

Met  aim  o.  State,  13  Smedes  &  M.  471....  545 
McCarnev  v.  People,  83  X.  Y.  40s.  3s  Am. 

Rep.  456 85,  159,  486,  901 

McCartee  v.  Camel,  1  Barb.  Ch.  4vVJ 23 

McCartney  13.  McMullen,  38  111.  240 189 

McCarty  r.   People,  51  111.  231,  99  Am. 

Dec.  542  599 

McCloskey  r.  People.  5  Park.  Crim.  Rep. 

299.. 203,  745 

McCluno-  r.  MeClung,  40  Mich.  493.. .850,  851 

McClurkin  r.  Ewing.  42  III.  283 261 

McCombs  v.  State,  8  Ohio  St.  643 606 

McConnell  v.  State,  67  Ga.  633. 229 

f.  State,  46  Ind.  298  _ 365 

V.  State,  22  Tex.  App.  454,  58  Am. 

Rep.  647 403 

McConnell's  App.,  97  Pa.  34 16 

McCorkle  v.  Binns,  5  Binn.  340        ...        116 

13.  State,  14  Ind.  39 616 

McCormick  v.  Joseph.  77  Ala.  236. 454 

McCotter  r.  Hooker.  8  X.  Y.  497        80 

McCoy  r.  People.  65  111.  439 861 

v.  State,  25  Tex.  33,  78  Am.  Dec.  520  441 

McCullough  d.  Davis.  108  Ind.  292  259 

v.  Mclntee,  13  U.  C.  C.  P.  441 888 

v.  State,  48  Ind.  112 732 

McDaniel   v.   Baca,  2  Cal.  320,  56  Am. 

Dec.339 362 

V.  Com.,  77  Va.  281. 242,  570 

v.  State,  8  Smedes  &  M.  401,  47  Am. 

Dec.  93 447,543,606 

13.  State,  76  Ala.  1 585 

McDermitt  v.  Hubanks,  25  Ind.  232 258 

McDermott  v.  State,  89  Ind.  187 16">.  195 

McDonald  v.  State,  63  Ind.  544. 196,  224 

Macdonnell,  Re,  11  Blatchf.  170 933,  944 

McDougal  y.  State,  88  Ind.  24 ...26,  141 

McDousrall  r.  Claridfre,  1  Campb.  26'i         B9I 

McDowell  o.  Crawford,  11  Gratt  377 158 

Macet'.  State,  6  Tex.  App.  470     436 

McElhanon  v.  People,  92  III.  369 203 

McElven  r.  State,  30  Ga.  868.. 440 

McFadden  v.  Fritz.  110  Ind.  5 249 

McFarland  v.  People.  TSzH.368 861 

McGarry  v.  People,  45  X.  V.  153 347 


McGinnis  v.  State,  24  Ind.  500 45,  46 

McGuire  v.  Peonle,  44  Mich.  2£6,  38  Am. 

Rep.  265.... 437,440 

v.  People,  9  X.  Y.  38... 521 

Mclntvre  v.  People.  38  111.  520 757 

Mack  o.  People.  B2  X.  Y.  236 265 

0.  State,  48  Wis.  27! 125 

McKain  v.  Love,  2  Hill,  L.  506,  27  Am. 

Dec. 401 - 276 

McKee  o.  People.  36  X.  Y.  116 oUl 

McKeever  r.  New  York  Cent.  &  H.  R. 

K.  Co.,  B8  X.  Y.  667.. 231 

McKenna  r.  State.  61  Miss.  589 ..1 

McKenney  r.  Dingley,  4  Me.  172 463 

McKenzie  13.  State.  26  Ark.  334 -- 

448.  621,  635,  640,  641 

McKeone  b.  People,  6  Colo.  346 346 

MeK<  --on  r.  Sherman,  51    \\  is,  303 2o8 

Mackey  v.  Com.,  80  Ky.  345 16& 

McKinney  13.  Jones.  55  Wis.  39 lo9 

v.  People,  17  HI.  556 259 

McKivitt  u.  Cone,  30  Iowa.  455 104 

McKleroy  v.  State,  77  Ala.  95 439 

McKown  v.  Craig,  39  Mo.  156 ~o0 

13.  Hunter,  30  X.  Y.  625 454,  B94 

McLain  13.  Com..  99  Pa.  86 — -  771 

13.  State,  18  Neb.  154  687,  733 

McLane  u.  State,  4  Ga.  335...-- —  3.9 

McLaughlin  13.  State.  52  Ind.  4,6..  17* 

McLean  v.  Clark.  47  Ga.  24 ~~3,  <>~jl 

Mc  Lei  Ian  v.  Croften,  6  Me.  301 ~>~ 

McManus  r.  State.  36  Ala.  285 5Jb 

McMeen  13.  Com..  114  Pa.  300 440,  5  04 

McNair  o.  Cow/.,  36  Pa.  388  .        n«{ 

Macon,!  tt,  1"  Kan.  .».-}—  lib 

McPhaul  13.  Lapsley,  87  U.  S.20  Wall.  264, 

.»  l  ed   344  ** 

McPhun.~Be,"24  Blatchf.254.....927,  932,  933 
McQuigan  r.  Delaware.  L.  &  W. R:  <  O., 

14  L.  R.  A.  166,  129  N.  \ .  o0  ...  691 
McQuiUen  r.  State,  -  Smedes  \-  M.  587  - 

Madden  v.  State.  65  Miss.  176 

Maddin  13.  Head.  1  Lea.  664    . 

Maden  13.  Emmons.  83  Ind.  331 

Magee  r.  Scott,  9  Cush.  148,  55  Am.  Dec. 

49  -' 

Magill  13.  Kauffman.  4  Perg.  &  R.  317         354 
Mahala  v.  State,  10  Yerg.  532,  31  Am. 

Dee.  591 i~ :~-  blt 

Maher  13.  People,  10  Mich.  217,  81  Am. 

£>ec   7S1  12b.  131,  191 

Mahon  r.  Justice.  127  U.  S.  700,  32  L.  ed. 

ogo  y.3?,  s»u 

Mahoney  13.  People,  5  Thomp.  A:  C.  329..  745 

Maine  p.  People.  9  Hun,  H3 5l{ 

Maines  13.  States,  26  Tex.  App.  14. .. 
Mallet  (3.  People,  3  Am.  Crim.  Rep.  o82 

Malonev  13.  People,  38  111.  62.        

Manice  v.  Brady,  15  Abb.  Pr.  1.3 

Mann  13.  Clifton.  3  Blackf.  304... 


249 
616 


791 
827 
861 
248 

240 


l\  People,  35  111.  467 861 

r.  Sii  aix  City  i:  P.  R.  Co.,  46  Iowa, 

037      '0 

Manuel  r.  People.  48  Barb.  548 239,  253 

Mapes  13.  People,  69  III.  530 142 

Marble  u.  Marble,  36  Mich.  386 350 

March  v.  Ludlum.  3  Sandf.  Ch.  45. 316 

v.  State,  117  Ind.  547  ;vv-v  ',?- 

Marclv  13.  Shults,  29  N.  Y.346  97.  100,  107,  24o 
Marcott  v.  Marquette,  H.  &  O.  R.  Co.,  1. 

Mich.  1 -  231 

Marcy  13.  Barnes,  16  Gray,  162 . 15d 

Marianna  Flora,  The.  2+  I*.  S.  11  A\heat. 

51,6  L.  ed.  417 -■  574 

Marion  ».  State,  16  Neb.  349  .-  440 

Marion  County  v.  dark,  94  I  .  s.  384,  IA 

L.  ed.  61 231 

Mark-  13.  State.  -7  Ala.  99 419 

Marler  13.  State.  67  Ala.  55,  42  Am.  Rep. 

95  353,  354,   187,  517,  583 

13.  State,  68  Ala.  580  515 

Marquand  c  Webb,  16  Johns.  89  ....245,  419 


\lii 


TABLE    OF   CASES. 


Mareden  p.  Overbury,  l*C.  B.  34 274 

Marebv.  Band,  35  Md.  123 80.81 

v.  Loader,  14 C.  B.  \.  8.  535 291 

Marshall  v.  Brown,  50 Mich.  148         ....  145 

v.  Daviee,  78  N.  V.  Hi 157,  327,328 

o.  BJli  \.  7  Ga.  367         290,  301 

o.  SI  .t  -.  5Tex.App.273 414 

p.  State,  8  Ind.  498 616 

r.  Slat.'.  59  Ga.  154 621 

p.  State,  7!  Ga.26 ...-  770 

Martin  p.  Farnham.  25  N.  II.  L99 358 

p.  People, 54  111.  225 206 

v.  State,  28  Ala.  si 127,  501 

v.  'iv. bin.  I-::;  Mass.  85 70 

p.  Travere,  12  Cal.243 2r,o 

Martin. -an  p.  May.  18  Wi9.  59. 360 

Marvin  t>.  State,  53  Ark.  395  ... 795 

Marx  p.  Pi  o  >le,  8J  Barb.  618 346 

Mary  p.  Stht  i,  oMo.  71 156 

Mason  p.  Libbey,  90  N.  V.  683 4:! 

0.  Lord,  hi  \.  V.  177 -50 

V.  State.  12  Ala.  532 216,  545,  751 

p.  State,  32  Ark.  239  47';,  511 

rale  t>.  -tat.-.  :i  Tex.  App.  ivi  - .  771 
Mass.  j  p.  Allen,  L.  K.  13  Ch.  Div.  558         97 

p.  State.  1  Tex.  App.  564. «; 

Masten  p.  Masten,  15  n.  ll.  159  850 

Math,  wa  p.  State,  19  Neb.  330 831 

.  N  iyi  S,  !5  Ul.  593     89,91 

Matthews  c.  St.  Louis  (..  Elev.Co.,50 

M..  3.v>  ™->ti 

ksw.  LymanVi'6Vt.*ii3-"".""I."  501 

Maurer  v.  People,  4;;  X.  V.  I      .  335,  394, 396 

Mauri  v.  Befferman,  13  Johns.  58 109 

Mauro  p.  Piatt,  62  111.  150 19;.' 

Maxbam  p.  Place,  4>;  \'t.  434      316 

Maxwell  p.  Rives,  11  Nev.  213 274 

V.  Stat.',  89  Ala.  164 419 

May  v.  l'.lam.  •';  Iowa,  365.. 2t)l 

r.  People.  60  III.  1".'  -   - 431,440 

u.  State,  6  Tex.  App.  191 436,572 

1 .  State,  92  III.  343  469,  476 

p.  State,  55  Ala.  39... 529 

Mayer  p.  Mayer,  21  N.  J.  Eq.  246 a50 

pli  .  8  I  \.  V.  364  

7:;.  700,  711  713,  779 

Mayfleld  v.  State,  110  Ind. 591 .  594 

Maynard  p.  Beardsley,  7  Wend.  561,  22 

Am.  Dec.  595    887 

v.  Firemen's  Fund  Ins.  Co.,  34  ('a I. 

48,  91  Am.  Dec.  672 141,  888 

Mayson  p.  Beazley,  27  Miss.  106. 97 

ise,  l  Lew.  C.  C.  l-i     578 
Means  p.  state,  in  Tex.  App.  16,  38  Am. 

Rep.  640 .264,  267 

Mechelke  v.  Bramer,59  Wis.57 414 

Medler  v.  State,  26  Ind.  171      206 

Medway  p.  Needham,  16  Mass.  157 804 

Meecb  p.  Smith,  7  Wend.  315  .... 17 

Mehle  p.  Lapeyrollerie,  16  La.  Ann.  4       850 
Meixsell  p.  Williamson,  a5  111.533  225 

Melluisfa  r.  CoUier,  14  Jur.  621       372,510,758 
M.  Km  p.  Melvin,  58  N.  II.  569  71 

Memphis  &  G.  R.  Co.  v.  Maples,  63  Ala. 

49 

Meranda  p.  Spurlin,  100  Ind.  380.. 249 

Mercer  p.  State.  17  Ga.  146 621 

P.  Stat.-.  17  Tex.  App.  452   

Merchants  Nat.  Bank  r.  State  Nat.  Bank 
77  r.  s.  10  Wall.  637,  19  L.  ed. 

1015 229 

ii  p.  Com..  1-  B.  Mon.  49.. . 
Mergentheim  p.  State,  107  [nd 
Merrill  p.  Berkshire.  II  Pick.  26  1 

v.  Ithaca  &  >  >.  R.  1 V  ..  16  Wend.  586, 

30  Am.  [i.e.  130  102,  108 

r.  IS 253 

Merriman  p.  Stat.-.  3  Lea,  394  377 

Merritt's  Case,  4  City  Hall  Ri  ..  797 

Metzger  p.  Franklin  Bank,  119  Ind.  359    259 

'-.  State.  1-  Fla.  481     495,  196 

P.  ("iillen.  .54  X.  V.  392 157 


Mover  v.  Goedel,  31  How.  Pr.  450 320 

v.  Pacific  R.  Co.,  40  Mo.  151 231 

Meyers  v.  Com.,  83  Pa,  131.. 

19:!,  436,  437,  443,  635,  771 

Michel  v.  Ware,  :>  Neb.  229 260 

Michigan  Cent.  K.  Co.  v.  Coleman,  28 

Mich.  44ti 108 

Miles,  Be.  52  Vt.609 937 

Miles  v.  I  nited  States,  103  TJ.  S.  304, 26  L. 

ed.  181 437,439,805-807 

Milliken  p.  Pratt,  125  Mass.  380 864 

Miller,  Be,  23  Fed.  Rep.  33 931 

Miller  r.  Barber,  66  X.  Y  558 402,  711 

U.Cook,  L24  Ind.  101 369 

V.  Com.  (Ky.)  10  Ky.  L.  Rep.  672  ..  581 
v.  Com..  78  Ky.  15.  39  Am.  Rep.194.  706 
r.  Kerr,  2  McCord,  L.  2s5,  13  Am. 

Dec.  722 886 

r.  Kirbv,  74  Dl.  242... 195 

v.  Miller,  9i  X.  Y.  315 802,  863 

l>.  People,  39  111.  457 

431,  440,  493.  495,  504,  686 

v.  Russell,  7  Mart.  (La.)  206 S54 

r.  State.  33  Miss.  356 255 

r.  State,  15  Fla.  577 346 

■r.State,  .54  Ala.  155 448 

V.  State,  40  Ala.  54 493 

p.  State,  25  Wis.  aS4 529,  530 

Miller's  Case,  2  W.  HI.  881 789 

Millett  v.  Blake,  81  Me.  531 173 

Milligan,  Ex  -parU ,  71  U.  S.  4  Wall.  2,  is 

L.ed.   281 ...911-913 

Millner  v.  Eglin,  04  Ind.  197, 31  Am.  Rep. 

121 188 

Miltenberjrer  v.  Logausport,  C.  &  S.  W. 
R.  Co.,  106  U.  S.  311,  27  L.  ed. 

];>()        4fi5 

Milton  v.  State',  6  Neb.'  138"."."."".'"."."'"  239 
Mima   Queen  v.  Hepburn,  11    U.  S.  7 

Cranch.  290,  3  L.  ed.  348 137 

Mims  v.  Sturdevant,  36  Ala.  640 10s 

Miner  v.  Phillips,  42  111.123.. 455 

Minich  r.  People.  8  Colo.  440 .228,  439 

Mint. in  v.  Com.,  79  Ky.  461 758 

Missouri  Pac.  R.  Co.  v.  Heidenheimer, 

82  Tex.  195 4S4 

Mitchell  v.  Carter,  14  Hun,  448 227,  253 

r.  Cum.   (Ky.)  12  Ky.  L.  Hep.  458..  352 

p.  State,  8  Yerg.  514 405 

p.  State,  60  Ala.  26.. 419 

v.  State,  79  Ga.  730 491 

v.  State,  42  Ohio  St.  383  ._ 616 

Mitchell's  Case.  12  Abb.  Pr.  249 310 

Mixon  v.  State,  55  Miss.  527 430 

Mobile  &  M.  R.  Co.  v.  Ashcraft,  48  Ala. 

30 108 

Moett  r.  People,  85  X.  Y.  373 198,  224 

Moflit  v.  Varden,  5  Cranch,  C.  C.  658....    22 

Monroe  r.  state,  5  Ga.  85 _ 570 

Montana   r.  Whitcomb,  1  Mont.  359,  25 

Am.  Rep.  740.. B47 

Montee  r.  Com.,  3  J.  J.  Marsh.  149  _ 141 

Montelius  v.  Atherton,  6  Colo.  227 79,  83 

Montgomery  r.  Be  vans,  1  Sawy.  tit?6 803 

p.  Montgomery,  3  Barb.  Ch.  132 ...  860 

r.  State,  11  Ohio,  427 141 

v.  State,  SO  Ind.  338. ...529,  531,  533,  538 
Montgomery  &  W.  PI.  R.  Co.  p.  Webb, 

27  Ala.  618 27 

Moody  v.  Osgood,  54  X.  Y.  488 197 

V.  People,  20  111.315  ...  165 

p.  Unwell,  17  Pick.  490,  28  Am.  Dee. 

317 ._ 115.325 

Moon  o.  Crowder.  72  Ala.  88... 113 

V.  State.  68Ga.687 229 

Mooney  p.  State.  33  Ala.  419 626 

Moore  V.  Hank  of  Metropolis.  38  U.  S.  13 

Pet.  302,  10  L.  ed.  172 200 

13.  Philadelphia  Bank,  5  Serg.  &  R. 

II      243 

r.  State,  68  Ala.  360 292 

r.  Stat.-,  12  Ala.  704,  46  Am.  Dec.  270  535 


TABLE    OF    CASES. 


xliii 


JMoore  v.  State,  2  Ohio  St.  590 506 

v.  State,  17  Tex.  Anp.  170 737 

u.  United  States.  91  U.  S.  273,  23  L. 

ed.  347 114 

Moots  v.  State,  21  Ohio  St.  653 101 

Morales  v.  State,  1  Tex.  App.  494,  28  Am. 

Rep.  419 181 

Morehead  v.  Brown,  51  N.  C.  307 636 

Morehouse  v.  Mathews,  2  N.  Y.  514 321 

Morey  r.  Morning  Journal  Asso.,  9  L.  It. 

A.  621,  123  N.  Y.  207 886 

Morgan  v.  Browne,  71  Pa.  130 712 

v.  Brydges,  2  Stark.  314 32.5 

V.  Farrell,  58  Conn.  413 86 

V.  Frees,  15  Barb.  352 359 

V.  People,  59  111.  58 90 

V.  Ravey,  6  Hurlst.  &  N.  265 18 

V.  Reid.  7  Abb.  Pr.  215 261 

v.  State,  48  Ohio  St.  371 432 

Morgan's  Case,  lMood.&  R.  134... 783 

Morris  v.  Bowman,  12  Gray.  467 436 

r.  Davies,  3  Oar.  &  P.  215  B58 

v.  Lachman,  68  Cal.  109 105 

V.  Miller.  4  Burr,  21  157 .69,  809,  852 

V.  Patchin,  24  N.  Y.  395,  82  Am.  Dee. 

311  ._ 51 

V.  Talcott,  96  N.  Y.  100 885 

v.  "Wadsworth,  17  Wend.  103 417 

Morrison  v.  Cbapin,  97  Mass.  72 97 

v.  Emslev.  53  Mich.  564 27 

r.  Lennard,  3  Car.  &  P.  127   ...  889 

v.  Porter,  35  Minn .  42.">,  5:<  A  m.  Rep. 

331 116 

V.  State.  13  Neb.  527 241 

Morrow  v.  Ostrander,  13  Hun,  219 In7 

Morse  v.  Potter,  4  Gray.  292 _ 328 

Morton  r.  Reeds,  6  Mo.  64 231 

Mose  r.  State,  36  Ala.  211 495 

Moser  v.  Kreiyh.  49  11!.  84 260 

Mosier  v.  Stoll,  119  Ind.  244 249 

Moss  v.  Witaeaa  Printing  Co.,64Ind.  1".'.")  195 

Mosser  r.  Mosser,  29  Ala.  313. 849 

Mott  o.  State,  29  Ark.  147 405 

Moultrie  v.  Hunt,  23  N.  Y.  394  862 

Mount  v.  Mount,  15  N.  J.  Eq.  162,  82  Am. 

Dee.  276 

v.  State,  14  Ohio,  295,  45  Am.  Dec. 

542 615 

Mt.  Desert  r.  Cranberry  Isles,  46  Me.  411  252 

Mown  v  v.  Walsh,  8  Cow.  238 738 

Mover  v.  Com.,  98  Pa.  338 130 

Mulhado  v.  Brooklyn  Citv  R.  Co.,  30  N.  862 

Y.  370 695 

Mulhollin  r.  State.  7  Ind.  640 320 

Mullen  v.  Morris,  2  Pa.  65 56 

V.  Prvor,  12  Mo.  307 27 

Mullinix  v.  People.  70  HI.  211 139 

Mullins  r.  People,  110  111.  42 440 

Muloek  r.  Mulock,  1  K  lw.  Ch.  14 850 

Mulrooney  r.  State.  20  Ohio  St.  326 738 

Munkers  v.  State.  87  Ala.  94 880 

Munsr.  Dupont,  3  Wash.  C.  C.  31 942 

Murphy    v.  Hagerman.    Wright  (Ohio) 

293 110 

r.  People,  90  111.59 229 

v.  State,  If)  Neb.  383 240 

V.  State.  106  Ind.  90 413 

Murray  v.  Harway,  56  N.  Y.  337... 250 

r.  Rable,  4  Hayw.  iTenu.)  203 240 

v.  State,  25  Fla.  528 489,  494 

Mutual  L.  Ins.  Co.  V.  Suiter,  131  N.  Y. 

557 782 

v.  Terry.  82  U.  S.  15  Wall.  580,  21  L. 

ed.  236... 073 

Myer  v.  Fegaly,  39  Pa.  429 172 

Myers  v.  Dixon,  45  How.  Pr.  4? 233 


Nash  r.  Hunt,  116  Mass.  237 45 

v.  State,  2  Tex.  App.  362 578 


Nash  v.  Towne.  72  U.  S.  5  Wall.  689, 18  L. 

ed.  527 107 

Nason  v.  West.  78  Me.  256 233 

Nathan  v.  Bueklaud,  2  Moore,  153 245 

NausrJe  v.  State,  101  Ind.  284... 258 

Neale  v.  Delaware,  103  U.  S.  370,  26  L.  ed. 

567 203 

v.  Neal,  58  Cal.  287 110 

Neiderluek  v.  State.  21  Tex.  App.  320...  173 

Nelms  v.  State,  58  Miss.  362 165 

v.  State.  13  Smedes    &  M.  500,  53 

Am.  Dec.  94 533 

Nels  v.  State,  2  Tex.  280 141 

Nelson  r.  Dodge,  116 Mass.  367 228 

v.  Musgrave,  10  Mo.  648 898 

v.  People.  5  Park.  ("rim.  Rep.  39...  408 

r.  State,  2  Swan.  259 366 

v.  Yorce,  55  Ind.  455 188 

Nepeau  v.  Knight,  2  Mees.  \-  W.  894.. 23,  801 

Nesbit  v.  State,  43  Ga.  238.. 539 

Nevlingt).  Com.,  98  Pa.  322... 20 

Newcomb  v.  Griswold,  24  N.  Y.  298 

45,280,  362 

v.  State,  37  Miss.  383 .361,  580,  594 

New  Haven  Countv  Hank  v.  Mitchell, 

15  Conn.  206 79 

Newkirk  v.  State.  27  Ind.  1.... 253 

Newman  v.  Goddard,  3  Hun,  72 418 

v.  State,  49  Ala.  9 504 

New  Orleans  Draining  Co.  v.  DeLizardi, 

2  La.  Ann.  281 263 

Newson  v.  Lycan,  3  J.  J.  Marsh.  440 240 

Newton  v.  State.  21  Fla.  53 396 

r.  -rate.  92  Ala.  33 .5s:> 

New  York,  The,  18  U.  S.  3  Wheat.  59,  4 

L.  ed.  333 570 

New  York    F.   Ins.   Co.    v.   Walden,   12 

Johns.  513 194 

Nicholls  i .  State,   5  N.  .1.  1..  539 203 

V.  State,  68  Wis.  410,   00  Am.  Rep. 

870 ._ 751 

r.  Webb,  21  C.   s.  8  Wheat.  326,  5 

L.  ed.  628 98 

Nichols  V.  Com.,  11  Bush.  575 575,  765 

V.  People.  17  N.  Y.   114 486 

c.  State,  8 Ohio  Sr.4:;"> ii20 

v.  White,  85  N.  Y.  531 373 

Nicholson  r.  Descbry.   14  La.  Ann.  81.    325 

Nicoles  v.  Calvert.  96  Ind.  316 195 

Nitche  v.  Karl.  ,  117  Ind.  270  249 

Nixon  r.  Brown,  4  Blackf.  157 195 

Noble  r.  State,  22  ohi«.  St.  545 840 

Noles  v.  State,  20  Ala.  31,  02  Am.  Dec. 

711 569 

Norris  r.  State,  -7  Ala.  85 228,  347,  349 

Norris'  Case.  6  City  Hall  Rec.  86 745 

North  v.  North,  5  Mass.  320 850 

Northwestern  Mut.  L.  Ins.  Co.  v.  Haze- 
Lett,  105  Ind  212 201 

Norton  v.  State.  106  Ind.  163 840 

Norwood  c.  Kenfield,  30  Cal.  393 370 

Noves,  Re,  17  Alb.  L.  J.  407 937 

Nuzum  v.  State,  88  Ind.  599 196 


O. 


Oaks  v.  Weller,  13  Vt.  106,  38  Am.  Dee. 

5-3.  16  Vt.   71 16,  83 

Ober  r.  Carson,  02  Mo.  209 320 

i  >berfelder  v.  Kavanaugh,  21  Neb.  ; 

( ib  mchon  v.  Boon,  in  Mo.  442  230 

O'Brien  v.  People,  48  Barb.  274 

420,  44\   19.5,  021,  628,  642 

O'Byrnes  v.  State,  51  Ala.  2.5 203 

O'Callaghan   v.  Bode,  84  Cal.  489    198 

O'Connell  v.  People.  87  N.  Y.  377,  11  Am. 

Rep.  379  26,  198,  426,  639,  042 

O'Connor  v.  State,  30  Ala.  9 708 

Odell  v.  Montross,  68  N.  V.  499 in; 

Ogden  v.  Payne,  5  Cow.  15 165,  loo 


xliv 


TABLE    OF    CASES. 


358 


4*1 

771 


.  Bro<  k-.  "7  [nd.  81  0,  .4  Am^Rep. 

778 Til 

O'Hagan  v.  Dillon,7l   v  V     70 330 

<  I'll,  rrlo  p.  State,  ei  [nd.  42  i  - 620 

n  r.  staii'.  11  Neb.276,  38  Am.  Rep. 

Oliver  o.  Com.,  l'H  Pa.  215, 47  Am.  Rep. 

880 

p.  81 
Olmstead  v.  Winsted  Bank,  32  Conn.  278, 

im.  D(  c.  360  370 

Olmsted  p.  Brown,  12  Barb.  657 892 

on.,  75  Pa.  i~i  ....     ....         -  ■ 

rtonk  v.  Ranlett,  3  Hill.  323.. .165,  166 

O'Neale  v.  Walton.  1  Rich.  L.234 97 

O'Neil  Ga.  66   223,  444) 

Oram  p.  Bishop,  12  N.  J.  L.  177. 240 

Orriway  p.  Haj  nes,  50  N.  II.  159  .  154 

■  Hi-.  H  Abb.  .N.  C.  388, 
53   \m.  Rep.     .1 
v  p.  People,  86  N.  Y.  154,  40  Am. 

"    Rep.  525 798 

.  Pi  ople,  53  N.  V.  172 

■   L,  598,901,  904 

Orton  i).  McCord,  33  Wis.  205 316 

Ortwein  p.  Com., 76  Pa.  U4,  18  Am.  Rep. 

420 202,  635,  640,  771 

pie,  2  Park.  Crim.  Rep. 

72. 

!  v.  Manhattan  Co.,  3  Cow.  621,  25 

245,  419 

.  Tu    big,  10 

Oshkosh  Gaslight  Co.  p.  Germania  F 

Ins.  Co.,  71  Wis.  454 
Oskami  b.)  17   L.   R.  A 



Overman  p.  Stab  .  49  Ark.  364  

Bow.   (Miss.)  328 

Owen  p.  Stat»  .7-  Ala."  125 "'-."""."..'.'.".7.494.  499 

Ow<  ii-      -•  17 105 

_ 239 

352 


_ 450 

mil  it  Barb.  640 245 

p.  Id. mail-.  14  Me.  178 116 

p.  Kankey,  6  Mo.  133   32 

p.  Parker,  13  N.  H.363,  BOAm.  Dec. 

172 414 

Palmer.  Re,  18  Int.  Rev.  Rec.  84 944 

ret  Nat.  Bank,4N.Y.  Week. 

80 

p.  People  (III.)  J  ■  II  5*2 

van.  21  Neb.  452,  59  Am.  Rep. 

i; 931 

state,  29  Ark.  248 594 

Panhandle  Nat.  Hank  p.  Emery, 78Tex. 

85 

I  mi..  86  Pa.  268 635 

•  ople,  1 14  111.  505 

.  2  Tex.  App.  228 171 

Park  Ban  .  p.  Tilton,  15  Abb.  Pr.  384....  261 
rex.  A  pp.  351         ....  404 
:    Ala.  77,  53  Am.  Ri  p. 

.  67  Mil.  329 831 

Parkin*  v.  Cobbitt,  1  I  ar.  &  1'.  282         .    44 
--.  52  I'.  S.  11  How.  373,  13  L. 

229 

i  .  -  Hun.  623 721 

.  Lyman,  30  N.  V.  1  3  862 

Am.  Rep. 

193  i,44.  650,655, 

:  '.  -  .  370 

.661  439 

J ....  584 

, 569 


Patt<  rson  v.  Harden,  3  L.  R.  A.  529,  17 

Or.  238. 

p.  People,  12  Hun,  137 

Pavev  r.  Pavey,  30  'Hun  St.  600 

Payne  p.  Com.,  i  Met.  (Ky.)370 

p.  State,  60  Ala.  8!)... 

-    it.,  i.l  Miss.  161 

Peak  p.  state.  50  N.  J.  L.  179 

Pease  p.  Cole,  53  Conn.  53,  55  Am.  Rep. 

53 

v.  Smith,  61  N.T.  477 

Peck  v.  Chouteau.  91Mo.l38.. 

p.  Hibbard,  26  Vt.698,  62  Am.  Dec. 

605 

P.  Lake,  3  Bans.  136 

p;  State,  86  Tenn.  259  136,367, 

r.  State,  5  Tex.  App.  till 

r.  Valentine,  94  X.  Y.569 

p.  Von  Keller,  76  X.  V.  604 

Pedlej  '.*  Case,  1  Leach,  C.  L.  Rep.  242  .. 

1'eliiam /-.  Page,  6  Ark.  535 

l'elluni  p.  Stare.  89  Ala.  32 

Pembroke  p.  AUentown,  41  X.  H.  365... 

Penneld  p.  Carpender,  15  .Johns.  350 

Pennington  p.  Gibson,  57  U.  S.  16  How. 
65,  14  L.  eel.  *47 

Pennsylvania  r.  McFall,  Add.  Rep.  257. 

Pennsylvania  R.  Co.  v.  Brooks,  57  Pa. 
343 
v.  Butler,"  57Pa.* 335."".".* '.'.'."'.'.'.'.'.'.'. 
p.  Zebe,  33  Pa.  318... ... 

People  v.  Abbott,  4  West  ( toast  Hep.  132 

p.  Abbot.  19  Wend.  192 

P.  Ah  How,  34  Cal.  21S 

y.  Ah  Sing,  59  Cal.  400 193,  437, 

p.  Ah  Wee;  is  Cal.  237 

p.  Ah  Yute,  53  Cal.  613 

v.  Aikin,  66  Mich.  481 

r.  Alivtree,  55  Cal.  263 _. 

p.  Allen.  5  Denio,  76 

v.  Anderson,  2  Wheel.  Crim.  Cas. 

398 

v.  Anderson,  44  Cal.  65 146,  569, 

r.  Anthony,  56  Cal.  397 

r.  Arnold,  15  Cal.  476 578, 

r.  Ashe,  44  Cal.  288  ._ 439,  598, 

v.  Austin,  1  Park.  Crim.  Rep.  154. 

191, 

v.  Badgley,  16  Wend.  53 

466,467,469,476, 

V.  Baker,  3  Hill.  159 _. 

V.  Baker,  96  X.  Y.340 

452.  454.  708,  710,  73S, 

v.  Ball,  14  Cal.  101,  73  Am.  Dee.  631 
v.  Barker,  60  Mich.  277  ...  491,  498, 

r.  Barnes  (Idaho)  Jan.  25,  1886 

p.  Barnes,  4-  <  a  1.551. 77, 

p.  Barnhart,  59  Cal.  381 

V.  Barrie.  49  Cal.  342 493,  494, 

V.  Barry,  63  Cal.  62... 

p.  Bartow,  1  Wheel.  Crim.  Cas.  381 
r.  Batting,  49  How.  Pr.  392.194,  444, 

r.  Beach,  87  N.  Y.  508 

r.  Bealoba,  17  Cal.  389 

r.  Belencia,  21  Cal.  544  .193,  444,  624, 

p.  Bell,  49  Cal.  4** 

Hows,  2  X.  Y.  Crim.  Rep.  12 

08, 

V.  Bennett,  49  X.  Y".  137. 

.140.  199,  239,  446.  476,  516, 

V.  Bennett,  37  X.  Y.  117,  93  Am.  Dec. 

^•"•1 490, 

r.  Beno  Ville.  3  Abb.  N.  C.  195.... 
V.  Benson,  C  Cal.  221,  65  Am.  Dec. 
51  wj 

r.  Biles.  5 West  Coast  Rep.  829.... 

v.  Bill,  10  Johns.  95. 520, 

13.  Blakeley,  4  Park.  Crim.  Rer«.  176 
p.  Blanchard,  90  X.  Yr.  314 

V.  Bodine,  1  Edm.  Sel.  Cas.  36 

201,  292,  598, 


868 
173 
114 
771 
361 
536 
535 

424 
224 
200 

53 

104 
377 
577 
103 
100 
7*9 
253 
684 
101 
418 

53 

191 

108 
417 
242 
536 
821 
504 
752' 
415 
165 
553: 
594 
s*:, 


540 
75* 
5-.0- 
579 
601 

328 

477 
401 

893 

732 
499 
840 
208 
284 
525 
795 
837 
450 
260 
448 


559 

746 

064 

606- 
638 
244 
521 

299 

710 

593 


TABLE    OF    CASES. 


xiv 


People  v.  Bolanger.  71  Cal.  21 

Boling.  83  Ca  1.380 


.524, 


Bonney,  19  Cal.  426. 

V.  Bo  wen,  49  Cal.  654 

V.  Bowers,  79  Cal.  415 

185,241,210,247. 

V.  Bradt.  46  Hun,  445 

v.  Bm.lv.  5(3  N.  Y.  182 927. 

17.  Brasde.  88  N.  Y.  585,  42  Ara.  Rep. 

269 

V.  Bransby,  32  N.  Y.  525 

245,259,4 

V.  Brewer.  27  Mich.  134         820,  854, 
v.  Briggs.  »*>  How.  Pr.  17. ..281,  410, 

v.  Brotherton,  47  Cal.  .388 

v.  Brown,  72  X.  Y.  571,  28Am.  Rep. 

183 329,351, 

t.  Brown.  59  Cal.  345 

v.  Brown,  76  Cal.  573 ..575, 

C.  Brown,  34  Mich.  339, 22  Am.  Rep. 

531 

V.  Brown,  47  Cal.  447 

V.  Brown.  6  Park.  Crim.   Rep.  666 
v.  Buddensieck,  103  N.  Y.  501,  57 

Am.  Rep.  766 176, 

17.  Burns.  53  Hun.  274 

r.  Bush,  68  Cal.  623. 

V.  Rush.  71  Cal.  602 

v.  Bussey,  82  Mich.  49 

V.  Cahoon.  88  Mich.  456 

V.  Campbell.  30  Cal.  312.  59  Cal.  243, 

43  Am.  Rep.  257 

v.  Cannon,  61  Cal.  476 381 

17.  Camel,  2  Edm.  S<  ....  642 

17.  Carpenter.  4  X.  Y.  ( 'rim.  Rep.  39  189 

v.  Carpenter.  102  X.  Y.  250 20  I,  642 

v.  Casborus,  13  Johns.  351 617 

y,  65  Cal.  261 190 

7,  96  X.  Y.  115 .'  i 

v.  Casey,  72  X.  Y.394.. 331  . 

v.  Caton,  25  Mich.  392     776 

7-.  Chapleau,  121  X.  Y.  266 488 

v.  Cheekee.61  Cal.  404 149 

v.  Cheong  Food  Ark.  til  Cal.  527  ..    20 

v.  Christman,  66  111.  162 861 

r.  Chung  Ah  Chue,  57  ( 'al.  567 382 

V.Cignarale.llON.  Y.  23 771 

v.  Cipperly,  101  N.  Y.  634,  37  Hun, 

319 455,  4:6 

v.  Clark.  7  X.  Y.  385 191,  448 

v.  Clark.  33  Mich.  112 217.  820 

V.  Clark.  102  X.  Y.  735.   347 

v.  Cleveland,  49  Cal.  577 195 

r.  (lews.  57  How.  Pr.  245 413 

17.  Cline.  74  Cal.  575,  83  Cal.  374.344,  752 

17.  Clough,  73  Cal.  348 516 

v.  Clough,  17   Wend.  351,   31  Am. 

Dec.  303 719 

r.  Coffman,  24  Cal.  233  635,  636 

17.  Cole.  43  X.  Y.  508 &56 

17.  Cole,  4  Park.  Crim.  Rep.  35 607 

v.  Coleman,  1  N.  Y.  Crim.  Rep.  3 

..641,673 

17.  Collier.  1  Mich.  140 862 

17.  Collins,  48  Cal.  277 415 

17.  Com.,  43  X.  Y.  508 357 

V.  Conger,  1  Wheel.  Crim.  Cas.  448 

....707,  71H 

V.  Connor.  12*5  X.  Y.  278 238 

17.  Conroy.  97  X.  Y.  62.30, 210,  405. 422.739 

v.  Cook.  8  N.  Y.  67 335 

v.  ( '.  iilun,  56  X.  Y.  363, 15  Am.  Rep. 

429 77,  209,  712 

v.  Costello,  1  Denio,  83 .506,  514 

v.  Cotta,  49  Cal.  169 44s 

v.  Coughlin,  65  Mich.  704 569 

17.  Courtnev,  94  X.  Y.  190 346,  793 

v.  Courtney,  28  Hun,  593 

476,510,511,901,  904 

17.  Crandon,  17  Hun.  490 

V.  Crapo,  76  X.  Y.  288,  32  Am.  I 

302 329,  351,  376 


People  v.  Crissie.  4  Denio,  525 702 

17.  Cronin,  34  Cal.  202.  203 546 

r.  Cross,  135  X.  Y.  536 937 

B.Croswell,  3  Johns.  Cas.  202... 881,  893 

v.  Crowley,  OCX.  Y.234. 816 

17.  Cruger,   102  N.  Y.  510,  55  Am. 

Rep.  830.. 738,  740 

V.  Curtis.  50  X.  Y.  321,  10  Am.  Rep. 

483 924 

17.  Cunningham,    6    Park.    Crim. 

Rep.  398 553 

0.  Dam-.  59  Mich.  552 245 

v.  Darr,  61  Cal.  544 357 

r.  Davis,  64  Cal.  44" i 44"i 

17.  Davis,  1  Wheel.  Crim.  Cas.  230     631 

17.  Davis,  56  X.  Y.95  401.  ■">-  . 

17.  D;i\  is,  21  Wend.  309.  506,511,514,  516 

17.  De  F(  .re.  64  M  ich.  693  ...   

v.  DeGrafl,  6  X.  Y.  S.  R.  412 132 

v.  Deniston,  17  Wend.  312 62 

v.  Dei  roit  Sup.  Ct.  Judge,  40  Mich. 

730 931 

V.  Devine.  46  Cal.  45 354 

«.  Dick,  32  Cal.  216.. 141 

r.  Dickie.  62  Hun.  400 778 

r.  Dishler,  4  X.  Y.  Crim.  Rep.  188    79 
v.  Divine.  1  Edm.  Sel.  Cas.  594  191 

17.  D  1.  44s 269 

u.  Doe,  1  Mich.  451.. 

v.  Dohring.  59  X.  Y.  374,  17   Am. 

Rep.  349.. 419, 

v.  Dolan,  9  Cal.  576 

v.  Donnelly,  1  Abb.  Pr.  459 520 

v.  Donohue,  84  N.  Y.438 934 

v.  Douglass,  4  Cow.  26  253 

v.  Dowling,  84  X.  Y.  478 132,  328 

V.  Driseoll,  107  N.  Y.  414.. 262 

r.  Druse,  5  X.  Y.  Crim.  Rep.  10  ...  5  ? 

v.  Dutl.  65  How.  Pr.  365... 

r.  Dumar,  1  6  X.  Y.  505. ...723,  7 

t>.Dve,62  Cal.  523 

V.  Dvle,  21  X.  Y.  578.. 30 

v.  Earnest.  45  Cal.  29 

v.  Eastwood,  14  X.  Y.  566. r 

r.  Eckert,  2  X.  Y.  Crim.  Rep.  17      351 

17.  Emerson,  20  X.  Y.  S.  R.  18 511 

17.  Enoch.  13   Wend.   176.  27    Ara. 

Dec.  197 191.  i 

v.  Elliott,  5  X.  Y.  Crim.  Rep.  204      509 
17.  Elliott,  106  X.  Y.  288  514,  873,  374,  .-77 

1?.  Elliott,  90  i  al.586 

17.  Estrada.  53  Cal.  601 238 

17.  Evans,  40  X.  Y.l 22 

17.  Evans,  122111.384... 906 

t7.  Everhard  t,  0  >4  X.  Y.  294 

511,  514,  779.  873.  874,  877 

17.  Faber,  92  X.  Y.  146,  44  Am.  Rep. 

357    s"4 

r.  Farrell.  31  Cal.  576. 45a 

17.  Farrell,  a>  Cal.  316 50S,  52; 

17.  Fenwick,  45  Cal.  287.. 

r.  Ferris.  55  Cal.  588 194.  44-! 

».  Few.  2  Johns.  290 -l'^ 

17.  Finley,  38  Mich.  482.. 431,  437,44 
v.  Finnegan,  1  Park.  Crim.  Rep. 

147..... - ---  374 

17.  Fish,  125  X.  Y.  136 333 

17.  Flvnn.  73  Cal.  511... 19 

17.  F<  >ley,  9  X.  Y.  S.  R.  24 

17.  Fong  Ah  Sing.  64  Cal.  253. ...5 

17.  Fong  Chin-.  78  Cal.  L69... 344 

c.  Fox,  121  X.  Y.  449.. -      492 

V.  Francis.  38  Cal.  183 ....165,  269 

r.  Freel,  48  Cal.  136 148 

v.  Fuller,  2  Park.  Crim.  Rep.  16. 

163,621,  626 

».  Gage,  62  Mich.  271  830,  835 

17.  Garbutt,17  Mich.  9,  '.'7  Am.  Dec. 

162  26,  577.  601,621,  635, 

17.  Gardiner,  6  Park.  <  Irim.  Rep.  158    60 

v.  Gardiner,  2  Johns.  177    741 

r.  Gass  iway,  23  Cal.  51 733 


xlvi 


TABLE    OF    CASES. 


.  Say,  r  n.  v.  881. 

v.  Gelabert,  38  Cal.  663 

ml.  L9  Mini,  !H 

tohell,  8  Mich.  (96 

D.  dii.!.-.  BS  v  Jf.  m 

Hblln,  1   L.  K.  A.  757,115  N.Y. 



v.  Gilkinson,  i  Park.  (rim.  Hep.  26 

r.  Gillian,  50  Hun,  36 

.  Glober,  71  Mich.  808  r 

r.  Goldenson,  76  Cal.  ■;•">- 119, 

o.  Gonzales.  33  N.  Y.  BO       

259,404,418,419, 

!•.  Gonzales,  71  Ca).  569  

v.  Q Iwin,  18  Johns.  187 612, 

D.  Goslaw,  78  Cal.  323 

i .  Graham.  6  Park.  Crim.  Rep.  135 
v.  (ii  i\ es,  5  Park.  Crim.  Rep.  154 . 

r.  Graves,  18  <  '"In.  — 

v.  Gray,  66  Cal.  -71  

r.  Gray,  61  Cal.  164,  14  Am.  Rep. 549 

i-.(.<  -  N.  Y. 301 

v.  Griffin,  38  How.  Pr.  475 

o.  Grim,  3  N.  V.  Crim.  Kep.  317 

D.  Guidici,  100  X.  Y.507 

V.  Hall,  48  Mich.  482,  42  Am.  Hep. 

3(1, 

r.  Hall,  6 Park.  Crim.  Rep.  642 

r.  II;. Hi. lav.:.  Utah,  467.. 

i.  Hamblin,  -  -  Cal.  101. 

v.  Marc  .",7  Mich.  506 

c.  Harriden,  1  Park.  Crim.  Rep. 

344 839, 

v.  Harris.  29  Cal.  678 ....194, 

.  .1  irris  (N.  Y.)  Jan.  17,1893 

o.  Iliiuii,  44  Cal.  96  ... 

v.  Baynes,  55  Barb.  450,  38   How. 

Pr.  369    _ 419,511,516, 

v.  Haynes,  14  Wend.  546,  28  Am. 

Dec.  530.. 699, 

v.  Beine,8  X.  V.  Leg.  Obs.  139  .... 

r.  Renderson,  28  Cal.  465 

r.  Henssler,  18  Mich.  49 700, 

r.  Mick-.  79  Mich.  457 

v.  Hisli  p,  77  \.  Y.  335.. 

o.  Hoin.62  i  !al.  120,  45  Am.  Rep.  651 

r.  Holbrook,  13  Johns.  90 

v.  Holselder,  5  N.  Y.  Crim.  Rep.  179 
o.  dooghkerk,  96N.  Y.  149         147, 

o.  Hopson,  1  Denio,  "4 72, 

r.  Horton,  64  X.  Y.610. 

r.  Hovey,  29  Hun,  382. 

219,244,284,  285, 

V.  Howard,  50  Mich.  241,  73  Mich 

in 


•'-•*     'J- 


Huihut.  i  Denio,  133 

Rill,309     

.607,  813,  819,  831, 

Humphrey,  7  Johns.  314 

804  806, 

Hylcr.  2  Park.  Crim.  Ken.  5 

;  Cal.  115 

Irving,  95  \.  V.  541" 

\i  ..  6  Cal.  207 

i.  Ml  X.  V.  ;>:2 

-  .  3  Park.  Crim.  Rep 
Jacobs,  49  Cal.  384.  .  372, 
Ja<  ma  ,  H  :;  N.  V.  L82 

.477,  511, 

Jaurez,  

I  ich.  321 

- 74,293,838, 

Jim  Ti,  32  Cal.  60 

.  Johnson,  46  Hun.  667 

Johnson,  1  Park.  Crim.  Rep. 


Johnson,  57  Cal.  571 

Johnsoi 
.  Johnson,  4  X.  Y.  i  rim.  Rep 

•|  Mich.  215 

II  i  al.  565 
Jon<  -.  99  V  V.  667 


146, 


S33,:835 


.-09, 
70.. 


874, 


844, 
496, 
176, 

:."..! 
L91" 


196, 

V.i  I 


.77, 
57  5, 


People  v.  Jordan,  66  Cal.  10 70O 

v.  Josephs,  7  Cal.  129 607 

v.  Josselyn,  39  Cal.  398 87a 

r.  Kane.  14  Abb.  Pr.  15 869 

v.  Kearney,  MO  N.  Y.  188 867,  877 

v.  K< illey,  94  X.  Y.  520 181 

V.  Kelly,  46  Cal.  357 2U6 

V.  Kelly,  24  N.  Y.  74 

297,  303,  306,  307,  313,  475 

V.  Kelly,  6  Cal.  210 408 

v.  Kemler,  119  N.Y.  580 771 

V.  Kendall,  25  Wend.  399,  37  Am. 

Dec.  240 721,  746 

v.  Kennedy.  32  N.Y.  145. ...476,  51(1,  544 
0.  Kenyon^S  Park.  Crim.  Rep.  286  854 

0.  Kerr,  6  N.  Y.  Crim.  Rep.  406 511 

r.  Kerrigan,  73  Cal.  222.. 677 

v.  Kibler,  106  N.  Y.  321.. 455 

V.  King,  2  Cai.  98 203 

v.  Kirby,  1  Wheel.  Crim.  Cas.  64...  607 
v.  Kleim,  1  Edna.  Sel.  Cas.  13 

642,  652,659,677 

v.  Knapp,  42  Mich.  267, 36  Am.  Rep. 

438 254 

V.  Knapp,  26  Mich.  112.. ^ 529 

v.  Knapp,  1  Edm.  Sel.  Cas.  177 539 

V.  Koehler,  5  Cal.  72 160,  164 

v.  Kohler,  49  Mich.  324. 239 

v.  Laiuente,  6  Cal.  202 408 

v.  Lake,  110  N.  Y.  61 842 

v.  Lamb,  2  Keyes,  371 

587,  58S,  598,600,607 

V.  Larned,  7  N.  Y.  448 688 

v.  Lattimore,  86  Cal.  403 688 

v.  Lawton,  56  Barb.  126 511 

V.  Lee,  17  Cal.  76 529 

v.  Lee  Chuck,  78  Cal.  317 254 

v.  Lenon,  79  Cal.  626 238 

v.  Levine,  85  Cal.  39 424 

v.  Leviston,  16  Cal.  99,  76  Am.  Dec. 

505 _ 241 

v.  Lewis,  36  Cal.  531 239- 

v.  Littlefield,  5  Cal.  355 408 

V.  Long,  43  Cal.  444 500- 

v.  Long,  44  Mich.  299 711 

v.  Luke,  27  N.  Y.  Week.  Dig.  51...    87 

V.  Lyon.  27  Hun,  180 456 

V.  Lyons,  110  N.  Y.  618 771 

v.  McCallain,  5  N.  Y.  Crim.  Rep. 

143 511 

V.  McCann,  16  N.  Y.  61, 69  Am.  Dec. 

642 190,  245, 

259,  422,  426,  437,  440,  636,  638,  660,  678 

V.  McCoy,  45  How.  Pr.  216 691,  692 

v.  McCrea,  32  Cal.  98 501 

v.  McDonnell,  47  Cal.  134. .  .635,  636,  641 
V.  McDonald,  43  N.  Y.  61 

.730,736,  740,  746, 

v.  McFarland,  8  Abb.  Pr.  N.  S.  57.. 

660,672,673,677 

v.  MeGee,  1  Denio,  19 289,  833-835 

v.  McGinty,  24  Hun,  64 745 

V.  McGloin,  91  N.  Y.  242 469,476 

v.  McGuire,  45  Cal.  57 276 

v.  Mclnerny,  5  N.  Y.  Crim.  Rep.  47  189 

v.  McKay,  18  Johns.  212 203 

v.  McKenney,  10  Mich.  54 67 

v.  McLane,  60  Cal.  412 276 

V.  McLean,  84  Cal.  480 415 

v.  McManon,  15  N.  Y.  384 488 

v.  McNair,  21  Wend.  608 290 

V.  McWhorter,  4  Barb.  438 29 

V.  Manyano,  29  Hun,  259 240 

v.  Marble,  38  Mich.  125.  _ 434 

0.  Markham,  64  Cal.   157,  49  Am. 

Rep.  700 363 

v.  Marseiler,  70  Cal.  98 264 

V.  Mather,  4  Wend.  229  .     . 

296,  297,  300,  301,  306,  824 

V.  Mayes,  06  Cal.  597,  56  Am.  Rep. 

126. 826,  a35 

V.  Mead,  50  Mich.  228 693 


TABLE    OF   CASES. 


xlvii 


People  v.Menken,  36   Hun,  91,  3  N.Y. 

Crim.  Rep. 233.... 

v.  Meseersmith,  57  Cal.  575 

V.  Meyer,  75  Cal.  383. 340, 

V.  Millard.  53  Mich.  63 149, 

v.  Miller,  2  Park.  Crim.  Kep.  197  .. 

v.  Miller,  33  Cal.  99 

v.  Millgate,  5  Cal.  127 

V.  Mills,  98  N.  Y.  176 

v.  Millspaugh,  11  Mich.  278 

v.  Mitchell,  45  Barb.  212 

v.  Mitchell,  62  Cal.  411 183, 

v.  Mitchell.  64  Cal.  85 269,  382, 

V.  Moett,  23  Hun,  60 

v.  Moudon.  103  N.  Y.  211,  57  Am. 

Hep.  709 

v.  Montgomery,  13  Abb.  Pr.  N.  S. 

209.. 500,  641,612, 

v.  Moore,  65  How.  Pr.  177 

v.  Moore,  37  Hun,  84 708, 

v.  Morine,  54  Cal.  575. 

V.  Morine,  61  Cal.  367 

v.  Morrison,  1  Park.  Crim.  Kep.  625 

..419,  813,814, 

v.  Morrow,  60  Cal.  144 .288, 

V.  Morse,  3  N.  Y.  Crim.  Kep.  104  .. 

v.  Murphy,  45  Cal.  137 352, 

V.  Murphy,  1  N.  Y.  Crim.  Kep.  102 

v.  Murray,  85  Ca-1.  361 

v.  Myers,2  Hun, 6 

V.  Myers,  20  Cal.  518 

v.  Naughton,  38  How.  Pr.  430 

v.  Nevins,  1  Hill,  158 

v.  Newman,  5  Hill.  295.355,  382,  384, 
v.  New  York  County  Jail  warden. 

100  N.  Y.20 

v.  New  York  County  Justices,  10 

Hun.  224 

v.  New  York  Hospital,  3  Abb.  N. 

C.229. 

v.  New    York   Police    Comrs.,    39 

Hun,  510... 

v.  Nicliol,  1  Fost.  &  F.  51— 

v.  Nichol,  34  Cal.  211 

V.  Noelke,  94  N.  Y.  137 350, 

v.  Noyes(N.  Y.)  N->v.  1876 

v.  Nyce,  34  Hun,  2!  8 425, 

V.  O'Brien,  66  Cal.  602 

v.  Odell,  1  Dak.  203 

v.  Ojrle,  104  N.  Y.  511.. 

v.  O'Neill,  112  N.  Y.  363 

V.  O'Niel,  109  N.  Y.  267 

v.  Ontario  Poor  Overseers,  15  Barb. 

290 859, 

V.  Ostrander,  18  Iowa,  435.. 

V.  O'Sullivan,  104  N.  Y.  481,  58  Am. 

Rep.  530 

v.  Over  &  Terminer  Ct.,  36  Hun, 

279... 

V.  Oyer  &  Terminer  Ct.  83  N.  Y.  436 

107,  320,  330,  347,  376, 

v.  Padillia,  42  Cal.  536 

v.  Palmer,  43  Hun,  407 

v.  Palmer,  109  N.  Y.  113 

v.  Parr,  5  N.  Y.  Crim.  Kep.  34 

v.  Parton,  49  Cal.  632. 

v.  Pease,  27  N.  Y.  45 

v.  Penhollow,  5  N.  Y.  Crim.  Rep.  41 
v.  People's  Ins.  Exch.  2  L.  K.  A. 

340,  126  111.  466. 

v.  Perkins,  1  Wend.  91 160, 

v.  Perry,  8  Abb.  Pr.  N.  S.  34 

v.  Petmecky,  99  N,  Y.  421..  113,  224, 

v.  Petrea,  92  N.  Y.  12S. 

V.  Phelps,  72  N.  Y.  334 

D.Phillips,  42  N.  Y.  200 

v.  Pbipps,  39  Cal.  326 439, 

V.  Pierpont,  1  Wheel.  Crim.  Cas.  139 
v.  Piuckney,  51  N.  Y.  S.  It.  310  .... 

v.  Pine.  2  Barb.  57:! 636, 

v.  Pinkerton,  79  Mich.  110 

v.  Pinkerton,  17  Hun,  199..929,  933, 


People  v.  Pitcher,  15  Mich.  397 


219 


.  Plath,  100  N.  Y.  590,  53  Am.  Rep. 
236  -   .  .421,  476,  510,  513,  873,  874,  877 

.  Pool,  27  Cal.  572 447 

.  Porter,  2  Park.  Crim.  Rep.  14.. 

476,621 

.  Poucher,  1  N.  Y.  Crim.  Rep.  544  738 
.  Powell,  11  L.  R.  A.  75,  87  Cal.  348  582 

.  Powell,  63  N.  Y.  370.. 904 

.  Quant,  2  Park.  Crim.  Rep.  410..  425 

.Quick,  58  Mich.  324 245 

.  Quin,  1  Park.  Crim.  Rep.  340....  194 

.  Quin,  50  Barb.  128 813,  814,  817 

.  Rae,  66  Cal.  42:;,  56  Am.  Rep.  102  706 

.  Knina,  45  Cal.  292 598 

.  Ramirez,  56  Cal.  533, 38  Am.  Rep. 

73.... 378 

.Rand,  41  Hun.  529 916 

.  Rando,  3  Park.  Crim.  Rep.  336. 

-. 72,131 

.  Randolph,  2  Park.  Crim.  Kep. 

174 832 

.  Kathbun,  21  Wend.  .509.. .501,  776.  777 

.  Reavey,  38  Hun,  418 295,350 

.  Rector,  19  Wend.  569  ....157,  159,  578 

.  Reich,  110  X.  Y.  660 771 

.  Restell,  3  Hill,  289 381,  394,  396 

.  Restenblatt,  1  Abb.  Pr.  268.. 411,  412 
.  Richards,  5  N.  Y.  Crim.  Rep.  355  753 
.  Ricker,  7  N.  Y.  Crim.  Rep.  22...  511 

.  Riley,  15  Cal.  48 81 

.  Risley,  1  N.  Y.  Crim.  Kep.  492  ..  161 

.  Roberts,  6  Cal.  214 _  607 

.  Robertson,  1  Wheel.  Crim.  Cas. 

66 499 

.  Robinson,  2  Park.  Crim.  Rep.  235  190 

.  Robinson,  86  Mich.  415 340 

.  Robinson,  1  Park.  Crim.   Rep. 

649 ....426,442,621,  626,  636 

.  Robinson,  19  Cal.  40.. 498 

.  Robles,  34  Cal.  591. 292 

.  Roderigas,  19  Cal.  9. 880 

.  Rodrigo,  69  Cal.  601 44U 

.  Rodriguez,  10  Cal.  50 504 

.  Rodundo.  44  Cal.  541 415 

.  Rogers,  18  N,Y.9,  72  Am.  Dec. 

481 193,  444,  62l,  622,  624,  757 

.  Rolfe,  61  Cal.  541 481 

.  Rozelie,  78  i  ai.  B4 344 

.  Rugg,  34  Hun.  632 374 

.  Rulloff,  3  Park.  Crim.  Rep.  438. 

! 468,  496 

.  Runjje,  3  N.  Y.  Crim.  Rep.  85...  512 

.  Russell,  46  Cal.  121 348 

.  Ryland,  97  N.  Y.  126 511 

.  Safford,  5  Denio,  112 373 

.  San  Martin,  2  Cal.  484 240 

.  Sehenek,  2  Johns.  479 741 

.  Schry  ver,  42  N.  Y.  1, 1  Am.  Rep. 

480 422,  420,  437,  636 

.  Schweitzer,  23  Mich.  310 211,  293 

.  Scoggins,  37  Cal.  676,  683.577,  579,  594 

.  Sharp,  107  N.  Y.  427 73,  207,  312 

.  Sharp,  5  N.  Y.  Crim.  Rep.  388...  511 

.  Shattuck,  6  Abb.  N.  C.  34 410 

.Shaw,  63  N.  Y.  36.. 537 

.  Sheldon,  68  Cal.  434... 190 

.  Sherman,  103  N.  Y.  513 325,  511 

,  Shulman,  80  N.  Y.  373,  note 779 

Simpson,  48  Mich.  474 575 

Skeeham,  49  Barb.  217 370 

Sligh,  48  Mich.  54 352 

Smith,  104N.  Y.491 74 

Smith,  15  Cal.  408 ...  504 

Smith,  28  Hun,  626 505,  507 

,  Smith,  5  Cow.  258 729 

Sprague,  2  Park.  Crim.  Rep.  43 

....  642,674 

Snuire,  3  N.  Y.  S.  R.  194.. 394 

Squires,  49  Mich.  487 

Standisb,  6  Park.  Crim.  Rep.  Ill  885 
Sb  in,  1  Park. Crim.  Kep. 202....  404 


xlviii 


TABLE    OF    CASES. 


People 
v. 


.(•!_-.  82  Bow.  Pr.  48 409 

Stokes.  8  X.  Y.  Crim.  Rep.  382.. 

476,  511,  559 

Stoke-.  58  V  Y.  1-4 588 

Stott,  t  N.  V.  (run.  Rep.  306  ...  895 
Stout,  4  Park.  dim.  Rep.  106  ..  66 
Stout,  3  Park.  Crim.  Rep.  670  ..  317 

■.  30  Col.  15]     .488,653 

Stubeavoll,  62  Mich.329.  ....434,  439 
Sullivan,  7  N.  V.  :i%  l'.'l.  572.  573,  593 
Sullivan,  4  X.  V.  Crim.  Rep.  197  893 
Bully,  :>  Park.  Crim.  Rep.  143...  703 

Sutton,  7-  Cal.  243 344 

Sweeney,  55  Mich.  586 450 

Sweeney,  133  X.  Y.609 607 

Taylor,  36  Cal.  255  441 

Taylor.3  Denio, 91 

y,  '.'7  Mass.50 —  709 

Thayer,  1  Park.  Crim.  Rep.  595      19 

Thomas,  9  Mich.  314 346 

Thomas,  23  N.  Y.321 ....719, 720 

Thomas,  :>  Park.  Crim.  Hep-  '■' 
Thompson,  41  N.  Y.  6 66 

psoD,  -i  I'd.  598 

.  3  Park. Crim.  Rep.  256     '.ml 
Thomsen,  3  N.  Y.  Crim.  i.    p.  582  5]  I 

Thornton,  71  Cal.  488. 206 

Thrall,  50  Cal.  415  -  468 

Thurston,  5  Cal.  69 203 

I..  R.A.669,  131  X.  Y.  651  347 
Tierney,  67  Cal.  54        -     ...  831,  835 

Titherington,  59  Cal.  598  752 

Tompkins,  1  Park.  Crim.   Rep. 

701,706,710 

Tonielli.81  Cal.  275    .... B92 

send,  1'!  Abb.  X.  C.  169...  916 

Travis,  56  Cal.  251 594 

Treadwell,  69  Cal.  226 14ti 

Tuthill,36  X.  Y.431... 798 

Tyrrell,  3  N.  Y.  Crim.  Rep.  1!:.' .  170 

Van  Alstine,  >7  Mich.  09 299 

Vane,  1'.'  v\  end.  52  607 

Yan  Hmjtcr.  38  Hun,  168 607 

Van  Wyck,  2  Cai.  334      

Vermilyea,  7  Cow.  369. ..162,  165,  394 
Videto,  1  Park.  Crim.  Rep. 

-.     .  477.  546 

Wakely,  62  Mich.  298.. ..211,  700,  710 
Walki  r,  5  City  Hall    Rec.  137.  .  631 

Wallin,  55  Mich.  497    293 

Waltz,  50  How.  Pr.  204  642 

Walworth,   4  X.  Y".  Crim.  Rep. 

355 042 

Ward,  4  Park.  Crim.  Pop.  516 
Ward,3N.  Y.  Crim.  Rep.  483  ...  485 

rvogle,  77  Cal.  173..      ..      700 

Wentz,  37  X.  Y.  309 493,  5 

Wheeler,  60  I  al.  581  145,  147,  149 

Whipple,  9  Cow.  707 

White,  53  Mich.  537 

White,  24  Wend  .539 ..         204 

It  Wend.  Ill 323,  418,  599 

White,  22  Wend.  167 ...405,  739 

White,62  Hun.  114    774 

4J-6 

3  Hill.  214... 194,245 

Willett,  1  How.  Pr.  X.  S.  197  101 
WUley,2  Park  Crim.  Rep.  19  621 
William?.  l3Cal.  344 

21,  024 
Williams,  Z 

223,  476,  ' 
Williams, 35  Hun.  516  .... 
William-.  19  Wend.  377..  521 

Williams,  32  Cal.  280        ..  569 

Williams,  4  Hill,  9,  40  Am.  Dec. 

702.  710 

Willi!  ...  7;ii 

Q,  109  X.  Y.  .if.")  .  771 

i,  55  Mich.  506    ...         I 

265 


People  v.  Wilson,  3  Park.  Crim.  Rep.  199 

46y,  473,  478 

v.  Wilson,  49  Cal.  14 635 

v.  Wolcott,  51  Mich.  612. ...406.  416,  493 
V.  Wood,  3  Park  Crim.  Rep.  681.. . 

212,  214,  461,  700,  714 

V.  Woodward,  31  Hun,  57 728.  729 

r.  Wreden,  59  Cal.  392 321 

v.  Ybarra,  17  Cal.  166 529 

v.  Young,  31  Cal.  563 204 

v.  Zeiger,  6  Park.  Crim.  Rep.  356..  867 
v.  Zimmerman,  4  N.  Y.  Crim.  Kep. 

272 225 

Pepoon  o.  Jenkins,  2  Johns.  Cas.  119 55 

Perkins  v.  Hayward,  124  Ind.  445 249 

Perry  r.  Gibson,  1  Ad.  i:  El.  32.. 52 

Pers<  'us  r.  MeKibben,  5  Ind.  261,  61  Am. 

Dec.  85 258 

V.  State,  90  Tenn.  291 .24,  25 

Perteet  v.  People.  70 Til.  171... 237.  259 

Peterv.  Star.-.  4  Stnedes  &  M.  31 496.  504 

Peterson  v.  Morgan,  116  Mass.  350 602 

v.  State,  47  Ga.  524 276,  290 

v.  State.  50  Ga.  142 579,581 

V.  Toner,  80  Mich.  350 584 

Petty  v.  People,  118  111.  157 237 

Pl'omer  v.  People,  4  Park.  Crim.  Rep. 

588   194 

Phelps  v.  People,  72  N.  Y.  349 404,  885 

Phene,  Re,  L.  R.  5Ch.  App.  139 803 

Philadelphia  &  T.  R.  Co.  v.  Stimpson, 

39  U.  S.  14  Pet.  463.  10  L.  ed.  543  417 
Philadelphia  Bank  v.  Officer,  12  Serg.  & 

R.  49 97 

Phillips  r.  Com.,  2  Duv.  328 572,  573 

r.  Gregg,  10  Watts.  158 808 

v.  People.  57  Barb.  £54 462,  751 

r.  State.  29  Ga.  105 469 

v.  State,  9  Humph.  246,  49  Am.  Dec. 

709 834 

Pickard  v.  Collins,  23  Barb.  444 

296,  297,  301,  361,  370 

Pickens  v.  State,  6  Ohio,  274 174 

Pierce  v.  Goldsberry,  35  Ind.  317 502 

r.  Hoffman,  24  Vt.  527 209 

V.  State,  13  N.  H.  536 141,189 

Pierson  r.  People,  79  N.  Y.  424,  35  Am. 

Rep.  524 213,  217,  615,  767 

v.  People,  18  Hun,  253 766 

v.  State,  12  Ala.  153. 141 

Pigman   v.  State,  14  Ohio,  555,  45  Am. 

Dec.  558 .194,  444,  021,  624,  626 

Pike  v.  Evans,  15  Johns.  213 248 

Pilger  v.  Com.,  112  Pa.  220 _    29 

Pingry   v.  Washburn,  1  Aik.  (Vt.)  204 

155  156 
Pinkh ami'  Cnekelf,  77  "Mich!  265.7. V. .. .'    86 

Pinney  v.  CahHl,  48  Mich.  584 145,147 

Piper  v.  White,  56  Pa.  90 414 

Pirtle  v.  State,9  Humph.  663 

193  444, 624  757 
Pitman  v~.  State," 22  A rk."3547. ...'....! 570,'  594 

Pitt  u.  Davison,  37  N,  Y.  239 205 

Pitts  r.Stat.'.  43  Miss.  472 405,469,476 

Place  o.  Minster,  65. N.  Y.  105 904 

.  State,  121  Ind.  433 141 

-  r.  State,  1  Tex.  App.  673 441 

Plath   v.    Minnesota   Farmers   Mut.   F. 
Ins.  Co.,  23  Minn.  479,23  Am. 

Rep.  697 83 

Plato  D.Kelly,  16  Abb.  Pr.  188. 331 

v.  Reynold*.  27  N.  Y.  586 342,  370 

Piatt  r.  Piatt.  5  Daly,  295. 850 

Pleasant.r.  State,  15  Ark.  024... 

-. 290.297.301,378,826 

Pleasants  r.  Fant,  89  D.  S.  22  Wall.  120. 

22  L.  ed.  782 229,271 

Poage  r.  state.  3  Ohio  St.  229 616 

Poe  u.  Dorrah,  20  Ala.  289,  56  Am.  Dec. 

196    27 

c.State,  10  Lea,  673... 771 

Poertner  v.  Poertner,  60  Wis.  614 223 


TABLE    OF    CASES. 


xlix 


Polin  v.  State,  11  Neb.  510 439 

Polk  v.  Butterheld,  9  Colo.  333 53 

v.  State,  19  Ind.  170,  80  Am.  Dec. 

382 141.6*5,638 

V.  State,  40  Ark.  482,  48  Am.   Rep. 

17 820,880 

Poller  v.  Lennox  Iron  Works,  4  Allen, 

329 238 

Pollock  v.  Pollock,  71  N.  Y.  137.  Ul 

250,  373.  559,  848.  849,  851 

Pomeroy  v.  State,  94  Ind.  96 833 

Pond  v.  People,  8  Mich.  160 570,  573,  765 

Pontius  0.  People,  82  N.  Y.  339.  .126,  217.  258 

Poole  r.  Perritt,  1  Speer,  L.  128 296,  297  i 

Pope  v.  State,  22  Ark.  372 

Portr.  Port,  70  111.  484 476,511,  364 

Porter  v.  Campbell.  2  Baxt.  81 25 

v.  Judson,  1  Grav,  175 97 

v.  Millard,  is  Ind.  502.... 195 

r.  Porter,  3Swab.  &  T.  796 68 

V.  State,  55  Ala.  95 493,499 

V.  Throop,  47  Mich.  313 182 

Portis  v.  State,  23  Miss.  578 203 

Possett r.  Miller,  3  Sneed,  76 364 

Post  v.  Kendall  County  Suprs.,  105  U.  S. 

667,  26  L.  ed.  1204 56 

Potter  v.  State,  85  Tenn.  88 579 

Pound  v.  State,  43  Ga.  S8 352 

Pounders  v.  State,  37  Ark.  399 426 

Powell  r.  Harper,  5  Car.  &  P.  590 131 

v.  State,  19  Ala.  577,  52  Ala.  1 

576,578,580.594 

v.  State,  17  Tex.  A  pp.  345 616 

v.  State,  88  Ga.  32 737 

Powers  v.  State,  87  Ind.  145 440 

Prather  v.  Com.,  85  Va.  122 243 

v.  Rambo,  1  Blackf.  189 260 

Pratt  v.  Norton,  5  Thorn  p.  &  C.  8 45 

r.  Richards  Jewelry  Co.,  69  Pa.  53.    70 

v.  State,  56  Ind.  179 188 

Pray  v.  Garcelon,  17  Me.  145 230 

Presbury  v.  Com..  9  Dana,  203 252 

Presser  v.  State,  77  Ind.  274. 569 

Preston  v.  state,  8  Tex.  App.  30 552 

PrfMiit  r.  People,  5  Neb.  377 522 

Pilce  v.  State,  190hio,  423.. 495 

Pnadvr.  Dodd,  4  Ind.  84 260 

Pridgen  r.  State,  31  Tex.  420 594 

Priest  v.  Groton,  103  Mass.  530. 463 

V.  State,  10  Neb.  393 469,476 

Priestman  v.  United  States,  4  C.  S.  4 

Dall.  28, 1  L.  ed.  727 53 

Primm  r.  Stewart,  7  Tex.  183 22 

Printer.  Samo,7  Ad.  &  Ei.  627 340 

Prindle  v.  Glover,  4  Conn.  266 78 

Priner.  Com.,  IS  Pa.  103 164 

Pritchett  v.  State.  22  Ala.  39, 58  Am.  Dec. 

250 577,  760 

Proctor  r.  M'Call,  2  Bail.  L.  298,  23  Am. 

Doc  135  **■* 

Pryor  v.  Com.,  27~Gratt.~10i6".I™"II"  242 

Puettr.  Beard,  86  Ind.  104... 502 

Pulliam  v.  State,  88  Ala.  1 534,  575 

Pulver  v.  Hiserodt,  3  How.  Pr.  49. ..165, 166 

Putnam  v.  Putnam,  8  Pick.  433 864 

v.  Sullivan,  4  Mass.  45,  3  Am.  Dec. 

208 778 

Puryear  v.  State,  28  Tex.  App.  73 479 


Queen  t>.State,5  Har.&  J.  232 371,  373 

Queen's  Case,  The,   2    Brod.   &  B.  297 

340,  359,  362,  903 

Queeneru.  Morrow.  1  Coldw.  134 365 

Quimby  v.  Morrill,  47  Me.  470 455 

Quinn  v.  State,  14  Ind.  589 371 

Quinsigamond  Bank  v.  Hobbs,  11  Gray, 

250 363 

D 


R. 

Radford  v.  State,  35  Tex.  15 737 

Ratterty  ,v.   People,  66  111.  118,  18  Am. 

Rep.  601 621,626,  757 

Railing  v.  Com.,  110  Pa.  100 529,  531,  532 

Railway  Pass.  Assur.  Co.  v.  Warner,  1 

Thump,  ,5c  C.  addenda,  21 84 

Rains  r.  State, 88 Ala.  91... 347,575 

Ralph  v.  Brown,  3  Watte  \-  S.  395 43 

Randel  v.  Chesapeake  &  D.  Canal  Co., 

1  Harr.  (Del.)  233 46 

Ranney  v.  People,  23  N.  Y.  413 

703,  706-708,  710,  711 

Rasberry  v.  State.  1  Tex.  App.  664 569 

Rawls  v.  State, 8  Smedes  &  M.  599.... 203,  255 

Rawson  v.  Haigh,  2  Bin g.  99 80 

V.  State,  19  Conn.  295 408 

Ray  v.  State,  50  Ala.  104 440 

Raymond  v.  Richmond,  83  N.  Y.  671 198 

Raynes  v.  Bennett,  114  Mass.  424 69 

Raynham  v.  Canton,  3  Pick.  295 _    56 

Rea  v.  State,  8  Lea,  356 546 

Read  v.  Com.,  22  Gratt.  924  ...243,  590 

v.  Decker,  67  N.  Y.  182 70 

Real  v.  People,  42  N.  Y.  270,  55  Barb. 

551 1531,  367,  626,  638 

Rector  r.  Com.,  80  Kv.  468 357 

Redd  i'.  State,  69  Alai  355 496,  497 

Redden  v.  Spruance,  4  Harr.  (Del.)  267.  108 

Keddin  v.  Gates.  52  Iowa,  210. _ 154 

>■;.  dford  v.  Peggy,  6  Rand.  <Ya.)  316  ....  113 
Reed,  Ex  parte,  100  U.  S.  2],  25  L.  ed.  538 

908   917 
Reed  v.  Keese.  60  n".  YV616 ".*"".""".  ..'  404 
V.  New  York  Cent.  R.  Co.,  45  N.  Y. 

575 134 

v.  State,  28  Ind.  396 773 

Reels  v.  Knight,  8  Mart.  (La.)  267 77 

Reemie  v.  Reemie.  4  Mass.  586 850 

Smith,  2  Stark.  29. 156 

Reese  v.  Reese,  90  Pa.  89,  35  Am.  Rep.  G34  114 

Reeve  v.  Long,  Holt,  286 81 

Reeves  v.  Pi  lindexter,  .53  N.  C.  30S 229 

r.  State,  84  Ind.  116 183,  185 

Reg.  r.  Archer,  Dears.  C.  C.  453 708 

v.  Baldrv,  3  Den.  ('.  C.  430 490 

v.  Barnard,  1  Fost.  k  F.  340. 43,  525 

V.  Barton,  3  Cox,  C.  C.  275 674 

r.  Bateman,  1  Cox,  C.  C.  ISO 777 

r.  Bates,  3  Cox.  C.  C.  203 706 

v.  Bawm,  1  Cox,  C.  C.  33 808 

r.  Beard,  8  Car.  &  P.  143 535 

V.  Bedingtield,  14  Cox,  C.  C.  341  ...  135 

v.  Berrv,  4  Fost.  &  F.  389 904 

v.  Bertles,  13  U\  ('.  C.  P.  807 70S 

V.  Bert  rand,  10  Cox,  C.  C.  625 338 

v.  Blackburn,  6  Cox,  C.  C.  333 501 

v.  Bleasdalc,  3  Car.  &  K.  765 67S 

v.  Boult,  3  Car.  &  K.  604 773 

v.  Boyes,  1  Best  &S.  311 300 

r.  Brown,  8  Cox,  C.  C.  69 71!) 

v.  Brvan,  1  Dears.  &  B.  C.  C.  265...  720 

v.  Bull.  9  Car.  &  P.  22 509 

v.  Buncombe,  1  Cox,  C.  C.  183 632 

V.  Burton.  Dears.  C.  C.  282 732 

o.  Cassidy,  1  Fost,  &  F.  79.... 407 

v.  Chambers,  3  Cox,  C.  C.  92 836 

r.  Chapman,  8  Car.  &  P.  559 131 

v.  Cobden,  3  Fost.  &'F.  833 72.  212 

v.  Cohen.  11  Cox,  C.  C.  99 

r.  (Ooper,  L.  R.  1  Q.  B.  19 700,  714 

V.  Cory,  10  Cox,  C.  C.23 608 

v.  Courvoisier,9Car.  &P.362 148 

V.  Cox,  L.  R.  14  Q.  B.  153 315 

v.  Crab,  U  Cox,  C.  C.  85. 708 

r.  Cruse,  8  Car.  &  P.  541 626 

v.  Davis,  14  Cox,  C.  C.  563 643 

v.  Dossett, 2 Car. &  K.306 700,714 

v.  Duflield,5  Cox,  C.C.432 901 

v.  Dunnett.  1  Car.&  K.  4.35 570 

v.  Farlar,  8  Car.  &  P.  106 509 


TABLE    OF   CASES. 


Reg.  t .  .  8  Cox,  C. 

814 

p.  Flower,  3  Jur.  558  68 

p.  Forster,  1  Dears.  C.  C.  456.. ..700,  714 

-     Iv  Eg.  548 72 



.'i:.  159,  700,  711,714 

v.  Gamlen,  l  F<  St.  A  P. 90      ...     -  626 
p.  Gar  Iner,  l  Dears.*  B.C.C.43..  710 

rt.&  F.681        459 

p.  G  -'  U  w.  C.  C.  237  ....  888 

r.  Gi  ■  ring,  I-  L.J.  M.C.215 700 

p.  G  !.l  .314 708 

r.  G<  orge,  l  ar.  &  M.  Ill 520 

0  I  ox,C.C.  35 708 

D.  GI    ■■■■■■  M    rx.C.<  .501 793 

r.  Gompertz,  9  Q.  B.824  719 

:    '.  ..  a   i  .   536     674 

v.  Gi  Car.  &  P.  471  ...289,833 

v.  H  r.&  P.  748 815 

p.  Hearn,  4  Best  &  S.  '.'4,  9  Cox,  C. 

I 413 

v.  Henshaw,  1>         fci      •»  706 

V.  Higgins  »n,  1  »  ar.  i;  K.  129 

639,646,674 

v.  Hill.  5Ci  E,  C.  C.  259 

p.  Hind,  8  Cox,  C.  C.  300 529,  53] 

o.  Holden,  8  Car.  &  P.  609 407 

v.  Holloway,  1  Den.  C.  C.  376.. .727,  728 

p.  B  St.  A  i  .  788 291 

I     \.  C  ('.  411 713 

v.  Hughes,  1  Car.  &  K.  519 796 

o.  Jenkins,  i I  >'.«'.  L91... ^'.4 

p.  Jenuison,  Leigh  &  C.  157.. 708 

v.  Johnston,  2  Mood.  C.  C.  254 706 

I).  Jones,  4  L.T.N.S.154.. 836 

p.  Kenrick,  5  Q.  B.  49 719 

v.  Langley,  3Salk.l90 

p.  Lavey,  3  Car.  &  K.26 793 

v.  F.aw.  2  F(  St.  &   P.  836.... 077 

p.  Layton,  1  Cox,  C.  C.  149 674 

p.  Lee,  9       c,  C.  C.  304 706 

p.  Lee,  Leic  i  &  C.  309 708 

p.  Lefr  >y.  L.  R.8  Q.  B.  134 265 

i.  Lewis,  6  i  ar.  &  P.  161 216 

■  .  L.  ,:.  :  C.C.196. 23,800 

p.  Mel  irthy,  2  Car.&  K.379 72 

p.  McNaghten.  10  Clark  &  F.200... 

!     i,  o50,  C77,  078 

r.  "  r.  V  1'.  641 816 

p.  Mead,  2  Ld.  Raym.  927 691 

p.  Megson,  9  Car.  .V  P.  418    ..  _ 



p.  Mercer,  6  Jur.  243 834 

p.  Mills,  1  Dears.  6  B  C.  C.  305  ....  721 
p.  Moore,  3  Car.  &  R.  319 626 

[uU     -  x,  C.  C.  526 525,  893 

v.  Muse  •  .....   ;\; 

v.  Newton,2  Moo  I.&  I?.  503.805.  -117, Nut 

r.  N  ir.  a:  K.  246 291 

P.  Oddy,  5  Cox,  C.  C.  210 

-- .  -  327,  700,  712-714 

074,  677 

r.  <  Irchard,  -  Car.  &  P.  565 131 

P.  Osborne,  1  Car.  &  M.  621 B34 

v. 1  tulagbam,  Jebb,  C.  C.  270  291 

•verton,  2  Moo  1.  c.  C.  263 364 

p.  Oxford,  9  Car.  &  P.  525  

-045,  650,  674,  077 

v.  Parish.  8  ''ar.  &  P.  94 525 

v.  Pearce,  9  1  ar.  v  P.  637  077 

p.  Perkins,  2  M I.  C.  C.  139  ..         291 

p.  Pickup,  LO  L.  C.  .1.310... 70S 

p.  Prince,  13  Moak,  Ens.  Rep.  385    905 
p.  Rearden,  4  Fost.  &  F.  76  836 

v.  Rendle,  11  Cox,  C.  C.  209  365 

p.  Rhodes.  2  Ld.  Raym.  886  169 

p.  Richardson,  2  Fost.  \-  !•'.  343 

--.211,  743.  777 

r.  Richardson,  SCox,  C.C.  u-    ?00,  7H 
v.  Riley,  16  Cox,  C.  C.  199 s^'5 


Reg.  v.  Rosebuck,  Dears.  &  B.  C.  C.  24..  'til 
p.  How  ton,  1  Leigh.  &  C.  520.   10 

1  ox,  C.  C.  25 ..602, 610,  611 

V.  Russell,  7  Dow.  P.  C.  0,1)3 265 

v.  Russell,  Car.  &  M.  247 399 

p.  Selten,  11  Cox,  C.  C.  674 442 

■p.  Simru(jnsto,  1  Cur.  &  K.  164 

805,806,809 

V.  Smith,  8  Car.  &  P.  160 573 

V.  Smith.  1  Cox,  C.  C.  J-'OO 631 

v.  Sprv,  3  Cox.  C.  C.  221 45 

r.  Stokes,  3  Car.  &  K.  185 674 

v.  Stubbs,  7  Cox,  C.  C.  48. 512 

v.  Taylor,  13  Cox,  C.  C.  77 1+6 

V.  The  World,  13  Cox,  C.  C.  305  ....  882 

v.  Thomas.  9  Car.  &  P.  741 735 

p.  Tufts,  1  Den.  C.  C.  319. 314 

p.  Tylney,  18  L.  J.  M.  C.  37 314 

r.  Upton,  1  Car.  &  K.  165. 806,  809 

v.  Vautfhan,  1  Cox,  C.  C.  80 674 

■p.  Voke,  1  Rugs.  &  R.  531 326 

v.  Walker.  2  Mood.  &  R.  212 S33,  835 

v.  Walsh,  5  Cox,  C.  C.  115 3S0 

v.  Weeks,  Leigh.  &  C.  18 72,  216 

v.  West,  8  Cox,  C.  C.  12 708 

v.  Wheatland,  8  Car.  &  P.  238 796 

V.  White,  4  Post.  &  F.  383 436 

V.  White,  2  Car.  &  K.  404,  2  Cox,  C. 

C.210 773 

■p.  Wiekham,  10  Ad.  &  El.  34 702 

V.  Wilson,  2  Car.  &  K.  527 777 

■p.  Wood,  1  Fost.  &  F.  497 132 

c.  Wood,  5  Jur.  225 375,  605 

Reggel.  Ex  parte,  114  U.  S.  042,  29  L.  ed. 

250 .937.  938 

Reich  v.  State,  53  Ga.  73,  21  Am.  Rep.  265  203 

Reid  v.  Reid,  17  N.  J.  Eq.  101 610 

v.  State,  50  Ga.  556 328 

Reitzp.  State,  33  Ind.  187 861 

Remseu  p.  People,  43  N.  Y.  6 599 

Republic  Fire  lus.  Co.  v.  Weido,  81  U.  S. 

14  Wall.  375,  JO  L.  ed.  894 C8 

Respublica  r.  Gibbs,  3  Yeates,  429,  4  U. 

S.  4  Da  11.  253,  1  L.  ed.  822 301 

p.  Lac-aze,  2  U.  S.  2  Dall.  118, 1  L.  ed. 

313 240. 

v.  Newell,  3  Yeates.  414 789 

v.  Shaffer.  1  U.  S.  1  Dall.  230,  1  L. 
ed.  115 257 

Reviere  p.  Powell,  61  Ga.  30, 34  Am.  Rep. 

94 106 

Rex  v.  All  Saints,  6  Maule  &  S.  194 285 

p.  Appleby,  3  Stark.  33. 29 

v.  Arscott,  6  Car.  &  P.  408 773 

v.  Asterly,  7  Car.  &  P.  191 708 

v.  Atwood,  1  Leach,  C.  C.  464 506 

V.  Ball,  Russ.  &  R.  132 218,  245 

v.  Barker,  3  Car.  &  P.  589 821,  823 

v.  Bartlett,  7  Car.  &  P.  832 501,  502 

V.  Birkett,  1  Russ.  &  R.  251 509 

v.  Bispham.  4  Car.  &  P.  392 

v.  Blandy,  18  How.  St.  Tr.  1118... 8,  560 

v.  Bootyman,  5  Car.  &  P.  300 68 

p.  Borron,  3  Barn.  &  A.  432 257 

v.  Bowman,  6  Car.  &  P.  101 013 

V.  Brooke,  2  Stark.  472 325 

v.  Broufrhton,  2  Strange,  1230 797 

v.  Burdett,  4  Barn.  &  Aid.  122 

...16,  467,  732 

r.  Burrow,  1  Lew.  C.  C.  238 674 

V.  Cabbage,  1  Russ.  &  K.  292.726,  727,  729 

p.  Clarke,  2  Stark.  241 

.820,  822-824,  828,  833-835 

V.  Clewes,  4  Car.  &  P.  221  .      ...      212 

v.  Cli  vig-er,  2  T.  R.  263 285 

v.  Codrington,  1  Car.  &  P.  661 703 

V.  Coveney,  7  Car.  &  P.  667 379 

v.  Crossley,  26  How.  St.  Tr.  218  8 

-P.  Culkin,  5  Car.  &  P.  121 401 

V.  Curwood.  3  Ad.  &  El.  815 68 

-p.  Dale,  7  Car.  &  P.  352 "  706- 

v.  Davis,  6  Car.  &  P.  171 72,  700, 714 


TABLE    OF    CASES. 


Rex  v.  Davison,  31  How.  St.  Tr.  217  ....  607 

13.  Dawlin,  5  T.  K.  311 169 

v.  Deakin,  2  Leach,  C.  C.  862 746 

v.  Deering,  5  Car.  &  P.  165 501 

13.  Derrington,  2  Car.  &  P.418 498 

v.  Despard,  28  How.  St.  Tr.  846 524 

13.  Dickenson,  1  Buss.  &  K.  101 399 

v.  Doug-las,  Mood.  C,  C.  102 706 

v.  Drake,  1  Lew.  C.  C.  25 808 

v.  Dutfin,  1  Russ.  &  It.  366 742 

v.  Duun,l  Mood.  C.C.  146 

72.209,790,714 

13.  Edwards,  1  Kuss.  &  K.  224 613 

13.  Egerton,  1  Kuss.  &  R.  375 70,  209 

13.  Eggingtou,  2  Bos.  &  P.  503 526 

V.  Ellis,  G  Barn.  &  C.  145 

70,  72,  208,  211,  288,  700,  714 

13.  Eriswell,  3  T.  It.  722... 380 

13.  Erring-ton,  2  Lew.  C.  C.  142 380 

13.  Parrington,  1  Kuss.  &  It.  207....  450 

v.  Fletcher,  1  Strange.  633 520 

v.  Flint,  1  Ituss.  &  It.  4150 720 

v.  Forbes,  7  Car.  &  P.  224 

v.  Foster,  6  ( !ar.  &  P.  325 

v.  Gardelle,  4  Celebrated  Trials,  400 

V.  Gill,  2  Barn.  &  Aid.  204 

v.  Goodhall,  1  Russ.  &  R.  401.  ..703, 

v.  Grady,  7  Car.  &  P.  050 

v.  Hadfield,  G7  Hans.  Pari.  Deb.  480 

13.  Hamilton.  7  Car.  &  P.  448 

v.  Hanks,  3  Car.  &  P.  419 

13.  Hsu-borne,  2  Ad.  &  El.  540 

13.  Hart,  7  Car.  &  P.  652 

v.  Harrie,  6  Car.  &  P.  105 

13.  Harris,  5  Barn.  &  Aid.  920 

";.  Harrison,  12  How.  St.  Tr.  850... 

v.  Harvey,  2  Ham.  &C.  257 

13.  Hay  ward,  0  Csir.  &  P.  157 

13.  Hilditch.  5  Csir.  &  P.  299 

13.  Hill,  1  Kuss.  &  K.190 

v.  Hobson,  1  Lew.  C.  C.  261 ... 

13.  Hodgson,  3  Car.  &  P.  445 

13.  Hodgson,  1  Kuss.  &  K.  211 . .  822, 

v.  Hogg,  0  Car.  &  P.  170 

13.  Holden,  1  Kuss.  &  R.  154 

13.  Hughes,  2  Lew.  C.  C.  229 

13.  Hutchinson,  2  Barn.  &  C.  608      . 
13.  Jacobs,  1  Mood.  C.  C.  140  ....807, 

v.  Jones,  2  Campb.  132 

V.  Jones,  31  How.  St.  Tr.  251 

13.  Kew,  12  Cox.  C.  C.  355 

v.  Killan,  21  How.  St.  Tr.  1085   ..  . 

V.  Kirkwood,  1  Lew.  C.  C.  103 

13.  Knill,  5  Barn.  &  Aid.  929 

v.  Laf  one,  5  Esp.  155 

v.  Lara,  6  T.  R.  505 

13.  Lloyd,  6  Car.  &P.  393 

13.  Lloyd,  4  Car.  &  P.  23? 

13.  Lloyd,  7  Car.  &  P.  318 

v.  Long.  6  Car.  &  P.  179 

13.  Lynch,  5  Car.  &  P.  324 

v.  McDaniel,  Post.  C.  C.  121  

13.  Maiden,  4  Burr.  2135 

v.  Martin,  6  Car.  &  P.  562 

v.  Mason,  1  Leach,  C.  C.  487 

V.  May,  1  Dougl.  193 

13.  Mayhew,  6  Car.  &  P.  315 

13.  Mead,  2  Barn.  &  C.  005 529. 

V.  Mogg,  4  Car.  &  P.  364 

V.  Moore,  2  Car.  &  P.  236 

13.  Morflt,  1  Kuss.  &  K.  307 720, 

13.  Morris,  1  Kuss.  &  K.  270 032 

v.  Norwood,  1  East,  470 805,  807,  809 

13.  Owen,  4  Car.  &  P.  236 039,  631 

v.  Paine,  5  Mod.  163 380 

u.  Parker,7Car.  &  P.  825 708 

».  Parsons,  1  W.  Bl.  392 711.900 

V.  Pearce,  Peake,  75. 70,884 

13.  Philp,  1  Mood.  C.  C.  204 442 

03.  Pippett,  IT.  R.  235 401 

13.  Pownell,  1  W.  Kel.  58 898 

t3.  Ramsden,  2  Car.  &  P.  003 103 


Rex  13.  Rath  wick,  2  Barn.  &  Ad.  039  ....  285 

v.  Roberts,  1  Campb.  399 

.212,  700,  711,  714 

13.  Roddatn,  Cowp.  672 274 

13.  Rosser,  7  Car.  &  P.  048. 276 

13.  Rowland,  1  Ryan  &  M.  401 521 

v.  Rudd,  1  Cowp.  332 500 

13.  Russen,  1  East,  435 827 

B.Scaife,  1  Mood.  &  R.  551 536,537 

v.  Shakespeare,  10  East,  83 171 

13.  Shaw,  0  Car.  &  P.  372.... 448 

v.  Sheen,  2  Car.  &  P.  635 616 

13.  Smith,  2  Stark.  208 380 

13.  Smith,  3  Burr.  1476 425 

13.  Smithies,  5  Car.  &  P.  332 501 

13.  Staffordshire,  6  Ad.  &  El.  99 50 

v.  Stannard,  "i  Car.  &  P.  673 COO 

13.  Stevens,  5  East,  244. 406 

13.  Stimpson,  2  Car.  &  P.  415. ...320,  327 

13.  Story,  1  Kuss.  &  K.  81 773 

13.  Stratton,21  How.  St.  Tr.  1045...  570 
13.  Swallow,  31  How.  St.  Tr.  907....  509 

v.  Tannett,  1  Russ.  &  it.  351 171 

13.  Thatcher,  T.  Jones,  .53. 379 

V.  Thomas,  7  Car.  \-  P.  345 498 

13.  Tinkler,  1  East,  381.. 245 

13.  Topham,  4  T.  It.  127 882 

13.  Truman,  1  East,  470. 805,806,  809 

13.  Twyning,  2  Barn.  &  Aid.  385 

_ 801,803 

13.  Warickshall,  1  Leach,  C.  C.  203.  490 

13.  Watson,  2  Stark.  116 8 

13.  Weltje,  2  Cam  lib.  142  _ 898 

13.  Wbilev,  2  Leach,  C.  C.  983. . .  .208,  327 
13.  Whitehead,  1  Car.  &  P.  67— .131,329 

13.  Wildey,  1  Maule  &  S.  188 613 

13.  Wilkes,  7  Car.  &  P.  272 516 

13.  Winkworth,  4  Car.  &  P.  444 459 

13.  Withers,  3  T.  R.  429 893 

13.  Woodcock,  1  East,  350 380 

13.  Worsenham,  1  Ld.  Raym.705 091 

13.  Wylie,  1  Bos.  &  P.  N.  K.  92  

.209,  700,  714 

13.  Woodcock,  1  Leach,  C.  C.  500... 

534,542 

v.  Tend,  6  Car.  &  P.  176 405 

13.  Young,  3T.  R.  98 _ 708 

Reynolds  v.  People,  41  How.  Pr.  179 

419,817 

13.  State,  68  Ala.  502 534 

13.  United  States,  98  U.  S.  145,  25  L. 

ed.244 354 

Rhodes  13.  State.  128  Ind.  189 309 

Kice  13.  Com.,  102  Pa.  408 400 

1).  Des  Moines,  40  Iowa,  638 194 

13.  Lnmley,  10  Ohio  St.  596 22 

13.  Rice,  31  Tex.  174 801 

Rich  13.  Jakway,  18  Barb.  357 321 

Richardson  v.  Burleigh,  3  Allen,  479 

432,  803 

13.  Newcomn,  21  Pick.  215 115 

13.  Richardson,  1  Hagg.  Eccl.  Rep. 

6 _ 854 

13.  State,  63  Ind.  192 217 

13.  State,  34  Tex.  142 851 

Richie  v.  State,  58  Ind.  355 000 

Richman  13.  State,  2  G.  Greene,  532. 296,  301 
Richmond  &  D.  It.  Co.  v.  Childress,  3  L. 

R.  A.  808,  82  Ga.  719 695 

Rickabus  13.  Gott,  51  Mich.  227 334 

Rickerson  u.  State.  78  Ga.  15 193 

Ricketts  13.  Harvey,  106  Ind.  564 198 

Ricklesu.  State,  68  Ala.  538 017 

Ridley  t\  Gyde,  9  Bing.  349 80 

Riehl  13.  Evansvdle  Foundry  Asso.,  104 

Ind.  70. 

Riggs  13.  Hatch,  16  Fed.  Rep.  838 79 

13.  State,  6CoIdw.  517 546 

V.  State,  104  Ind.  201 748 

Riley  13.  Connecticut  River  It.  Co.,  135 

Mass.  292 233 

13.  State,  95  Ind.  446 251 


lii 


TABLE    OF   CASES. 


Ripon  i-.  Blttel  30  Wis.  614 145,  14* 

Rippey  v.  Friede,  88  Mo.  523 231 

Bisk  r.  Stat.-,  19  [nd.  LS2      861 

Ritzman  r.  People,  im  III.  363 250 

Rivara  t).  Ohio,  3  E.  D.Smith,264 289 

Rizzolo  p.  Com.,  126  Pa.  54 - 201 

Roach  v.  People.  77  III.  25 570 

Robbv.  Rackley, 23  Wend.  50 378 

Bobbins  d.  Alton  Marine  F.  [ns.  Co.,  12 

Mo.  380     230 

r.  Smith,  47  Conn.  182 859 

v.  State,  8 Ohio  St  131 530 

Roberts,  Re,24  Fed.  Rep.  132  943 

Roberts  v.  Allatt,  1  M I.  &  M.  192 921 

c  Burks,  I. in.  Sel.  Cas.  411 108 

v.  Graham,  7:;  U.  S.  6  Wall.  578,  18 

I.,  ed.  791 248 

t>.  Peoj  le,  9  Colo.  158       L9,  160,  101,701 

r.  People,  11  Colo.  212 466,  507 

r.  People.  19  Mich.  101 626 

ly,1161  .  S.  80,  29  I,,  ed.  544 

933,943 

v.  State,  68  Ala.  156,  515 

1358,  386,579.580,  59 1 

».  State,  19  Ala.  526 408 

r.  State,  5 Tex.  App.  141 536 

D.  State,  61  Ala.  401 732 

Robertson  v,  State  4  Lea,  425 240 

Robinson  u.Mandell.  3  Cliff.  169 153 

r.  NeaL5T.  B.  Mon.  213 296 

u.  Shanks,  118  [nd.  125... 258 

v.  State,  -4  Ind.  4  2 

v.  Mate,  12  Mo.  592  524 

p.  State,  21  Tex.  App.  160  .  617 

Roche  v.  Brooklyn  C.  &  N.  R.Co.,  105N. 

Y.  294,  59  Am.  Rep.  506 125 

Rockwood  v.  Poundstone,  38  [11.199....  370 

Roddy  r.  Finnegan,  43  Md.  190 361 

re  v.  Stat.-,  50  Ala.  102 13 

Roe  v.  Day,  7  Car.  &  P.  698 M 

v.  Harvey,  i  Burr.  2484    221,  691 

Rogers  < .  Ritter.  7'.)  U.  S.  12  Wall.  317,  20 

L.i'd.  417 113 

State,  62  Ala.  170.. 578,  580 

Rolfe  r.  Rumford,66  Me.  564.. 245 

32  Pa.306,  22  Am.  Rep. 

758 750 

Rollins  v.  state,  21  Tex.  App.  148 45 

Romaine  t>.  State,  7  [ud.  67  252 

Romertze  v.  East    River  Nat.   Bank,  2 

ley,  B2 it'll 

Root  v.  Lowndes,  6  Hill,  518, 41  Am.  Dec. 

762  .  

Rose  v.  First  Nat.   Bank,  91  Mo.  399,  60 

Am.  Rep.  258 782 

Roseborougb  v.  State,  43  Tex.  570 252 

thai  r.  Mayhugh,  33 Ohio  St.   155      22 
v.  Walker,  Ul  U.  S.  185,  28  I.,  ed. 

...79,  -:;.  89,  92,  94 

eeig  v.  People,  63  Barb.  634... 207,  419 

trie,  2  Bond,  252 932 

Ross  v.  Ackerman,  46  X.  Y.  210 419 

v.  [nnis,  35  III.  187 .    743 

v.  Overton,  3  Cal.  309,  2  Am.  Dec. 

552 242 

v.  People,  5  Hill,  294  700,  738,  789 

v.  Ross,  129  Mass.  252 863 

v.  Mate,  74  Ala.  532 517 

.  Ala.  224    623 

Both  o.  >tate.  LO  Tex.  App.  27 174 

Rouch  v.  Great  Western  R.  Co.,  1  Q.  1$. 

51. 80 

Bourko  i'.  Bullens,  8  Gray,  549 2:>0 

rte,  7  Cal.  485...  ....   303 

Rowellv.  Fuller,  59  Vt.  684    110,  111,  110,780 
Rowley  v.  Bigelow,  12  Pick.  311,  23  Am. 

Dec.607.. 462 

offin,  70  Me.  468 158 

Biilo  r.  State,  19  Tn  I.  298 010 

BulolT  v.  People,  18  N.  Y.  17!)    ... 

23,24,219,  ' 

V.  People,  15  X.  Y.  213 153,  317 


Runyan  13.  Price,  15  Ohio  St.  1,  80  Am. 

Dec.  459 25 

D.  State,  57  Ind.  80.  26  Am.  Rep.  52 

509,574,585,  758 

Russell  r.  Coffin,  8  Pick.  14:; 007 

c.  Com.,  78  Va.  400 771 

t.  Hudson  River  R.Co.,  17  N.  Y. 

134      107,108 

v.  State,  11  Tex.  App.  288 71 

13.  State,  68  Ga.  785 240 

Rutherford  v.  rum.,  2  Met.  (Ky.)387...  290 

Rutter,  Re.  7  Abb.  Pr.  X.  s.  67 945 

Rutzen  13.  Fair.  4  Ad.  &  El.  53 245 

Ryan,  Ex  parte,  44  Cal.  555 403 

Ryan  v.  Harrow,  27  Iowa,  491,  1  Am. 

Rep.  302 2.53 

v.  People,  79  N.  Y.  594. 329,  375 

r.  People,  19  Abb.  Pr.  232.. 601 

Ryder  v.  Womb  well,  L.  R.  4  Exch.  39.. 

229,231 

Ryerson  r.  Abington,  102 Mass.  526. 374 


Safford  v.  People,  1  Park.  Crim.  Rep. 

474.... 809,871 

St.  Charles  r.  O'Mailey,  IS  111.  407. ...508,  893 
St.  Louis  &  I.  M.  B.  Co.  v.  Silver,  50  Mo. 

265 325,33!) 

Samu.  State.  33  Miss.  347 409 

Sanchez  v.  People,  £1  N.  Y.  147 371 

Sanders  v.  Leigh,  2  Har.  &  McH.  380....  224 
Sanderson  v.  Caldwell.  45  N.  Y.  398,  6 

Am.  Rep.  105 883,  888,  897 

v.  Osgood,  52  Vt.  309 110 

r.  Sanderson,  20  Week.  Rep.  261...  68 
Sanderson's  Case,  3  Cranch,  C.  C.  638....  230 

Sandwell  v.  Sandwell,  Holt,  2y5 97 

Santissima   Trinidad.    The,   20  U.  S.  7 

Wheat.  338,  5  L.  ed.  468 224 

Sarbach  v.  Jones,  20  Kan.  497 288 

Sargent  v.  People,  04  111.  327 239 

r.  Wilson.  59  N.  H.  396 363 

Sartorious  v.  State,  24  Miss.  602 150 

Satterlee  v.  Bliss,  30  Cal.  507 281 

Satterwhite  v.  State,  0  Tex.  App.  609....  240 

Saunderson  v.  Jndpe,  2  H.  Bl.  509. 94 

Sawyer  v.  Chicago  &  N.  W.  B.  Co.,  22 

Wis.  403 19-< 

Saxon  v.  Whitaker,  30  Ala.  237 25 

Saverf.  Kitchen,  1  Esp.  210 46 

Sayres  v.  Com.,  88  Pa.  29 1  635,  640 

Scarlett  v.  State,  25  Fla.  717 708 

Schappner  v.  Second  Ave.   B.  Co.,  55 

Barb.  497 227 

Scheel  v.  Eidman,  77  111.  9)4.. 24 

Schlencker  v.  State,  9  Neb.  241 193,  441 

Schnecher  v.  People,  88  N.  Y.  192 126 

Schnier  v.  People,  23  111.17 139 

Scholes  v.  Hilton,  10  Mees.  &  W.  15 265 

Schoolcraft  v.  People,  117  111.  271 575 

Schooler  r.  Asherst,  1  Litt.  (Ky.)  216....  171 

SchoonoM-r  v.  State.  17  Ohio  St.  294 738 

Schriedley  v.  State,  23  Ohio  St.  130 452 

Schroeder  r.  Chicago,  R.  I.  &  P.  R.  Co.. 

47  Iowa.  375 091 

Schultz  v.  State,  20  Tex.  App.  316 439 

v.  Third  Ave.  R.  Co.,  80  N.  Y.  213 

342,370 

Schuster  p.  State.  80  Wis.  107 325,  339 

Schuylkill  &•  D.   Imp.  &  B.  Co.  v.  Mun- 

son,  81  D.  S.  14  Wall.  448,  20  L. 

ed.872 16,229,231 

Schwartz  r.  Com.,  27  Gratt.  1025,  21  Am. 

Bep.  365 ...795,  790 

Scott  13.  Com.,  4  Met.  (Ky.)  227,  83  Am. 

Dec.  461.. _ 678 

13.  Key,  11  La.  Ann.  232 863 

u.  People,  63  111.  508. 407.  529 

13.  People,  62  Barb.  02 706,  710 

».  State,  63  Ala.  59 255 


TABLE    OF    CASES. 


liii 


Scott  v.  State,  19  Tex.  App.  325.. 

13.  State,  23  Tex.  App.  452 

Scovil  v.  Baldwin,  27  Oonn.  316 

Scripps  u.  Reilly,  38  Mich.  10 

Scroggina  u.  Scroggins,  Wright  (Ohio) 

21-' 

Searla  t>.  People,  13  111.  597 

v  v.  Dearborn,  19  N.  H.  351 

Seeley  v.  Engell,  13  N.  V.  542. 

Segar  v.  Luikin,  77  Me.  142 

Seibertr.  Allen,  (51  Mo.  482 

Seller  r.  Jenkins,  97  Ind.  430 

Selma,  R.  &  D.  R.  Co.  v.  Keith,  53  Ga. 

178 

ii  r.  People,  42  Mieh.  141 

Seymour  o.  Wilson,  14  N.  Y.  567 

Shackleford  v.  State.  33  Ark.  539... 

Staaffner  r.  Com.,  72  Pa.  60  ...73,  2 

shall  o.  Lathrop,  3  Hill, 237 

Shannahan  o.  Com.,  8  Bush.  4>;4 621, 

Shapoonmash  c.  United  State-.  1  Wash. 

Terr.  188 

Sharp  r.  State,  1".  Tex.  App.  171 

Sharwin's  Case,  1  East,  341.. 401, 

Shaw,  Ex  parte,  61  Cal.  5s 264, 

Shaw  v.  Emery,  42  Me.  59 _ 

v.  Gould,  L.  R.  3  H.  L.  55.... 

V.  People,  3  Hun,  272 

v.  Shaw,  2  Swan.  &  T.  042 

Shay  i).  Pe<  >ple,  22  N.  Y.  317 

Shealy  o.  Edwards,  75  Via.  Ul  ... 

Sheldon  v.  Wood,  2  Bosw.  267 

Shelton  13.  Durham,  76  Mo.  434 

v.  Hampton,  28  N.  C.  216 

Shepard  v.  Giddings,  22  Conn.  282 

13.  Parker,  36  X.  Y.517 334, 

13.  Potter,  4  Hill,  202  

Shepherd  v.  Lanfear,  5  La.  336 

13.  People,  19  X.  Y.  537 

13.  People,  25  N.  Y.  406 

Sheriden  v.  Smith,  2  Hill,  538... 

Sheriff  of  New  Y^ork,  Re,  1  Wheel.  Criru. 

Cas.  303.... 

Sherman  v.  Gundlach,  37  Minn.  118 

Sherwin  v.  People,  100  X.  Y.  351 

Shields  v.  Cunningham.  1  Blaekf.  86 

Shinn  13.  State,  64  Ind.  13,  31  Am.  Kep. 

110 

Shipply  r.  People.  86  N.  Y.  375.. 

Shoekey  v.  Mills,  71  Ind.  288,  36  Am.  Rep. 

196 

Shoemaker  v.  State,  12  Ohio,  43 

Shook  v.  Thomas,  21  111.  87 

Shorb  v.  Kinzie,  Km  Ind.  429 

Shorey  i\  Hussey,  32  Me.  579 

Short  v.  State,  4  Harr.  (Del.) 568.. 296, 301, 
Shorter  v.  People,  2  X.  Y*.  193,  51  Am. 

Dee.  286 245,  259,  570, 

v.  Sheppard.  33  Ala.  6is 

Shubert  r.  State,  21  Tex.  App.  551 

Shular  v.  State,  105  Ind.  289,  55  Am.  Rep. 

211 176,  179,  180, 

Shultz  v.  Hoagland,  85  X.  Y.  464 

Sibley  v.  smith,  46  Ark.  275,  55  Am.  Rep. 

584 

Sidney  School  Furniture  Co.  o.  Warsaw 

Twp.  School  Dist.,  122  Pa.  494  . 
Sikes  13.  Dunbar,  2  Wheat.  Sel.   N.  P. 

1091 

Sills  13.  Brown,  9  Car.  &  P.  601.. 

Silverman  v.  Foreman,  3  E.  D.  Smith, 


Simmons  r>.  Com.,  5  Binn.  617 

Simms  13.  State,  10  Tex.  App.  131 352, 

Simon  v.  State.  5  Fla.  285  ...  495,  496.  499, 
Simpson  v.  Dall,  70  U.  S.  3  Wall.  460,  18 

L.ed.  26.5. 43, 

v.  Pitman,  13  Ohio,  365 

v.  state,  4  Humph.  456 

13.  Stale.  In  lex.  App. 681 

Sims  v.  Boynton,  32  Ala.  353,  70  Am.  Dec. 
51U 


550 
771 
219 
182 

B51 

370 

286 

70 

320 

71 

70 

<r,2 

15, 

354 
162 
248 
626 

164 

336 
105 
367 

■ 

862 

51  'i ! 

68 

t06 

;  i 

3 .'" 

260 

370 

13 

258 
145 
614 
358 

164 
931 
264 
363 

746 

12:: 

(55 

448 
160 
192 
374 
361 

572 

'••1 

617 

184 
559 

695 

232 

U0 
379 

327 
741 

552 
51 H 

44 

252 

5  (1 

737 


Sims  r.  Sims,  75  N.  Y.  4<36. 597,  598 

Sindram  c.  People,  88  N.  Y,  196..189,  196,  587 
Sioux  City  &  P.  R.  Co.  v.  Stout,  84  U.  S. 

17  Wall.  657,  21  L.  ed.  745 232 

Sivan  v.  State,  4  Humph.  136 193 

Skaggs  r.  State.  liH  Ind.  53....  378 

Skeflinger  v.  Howell,  8  X.  J.  L.333.  370 

Skiles  v.  Caruthers,  88  111.  458  194 

.  State,  29  Tex.  App.  381 583 

Slatterly  v.  People,  58  N.  Y.  354 197 

Slattery  r.  People,  76  111.217. 78 

Slusser  v.  Burlington,  47  Iowa,  300 3.54 

Small  v.  Montgomery,  23  Fed.  Kep.  707    931 

Smaltz  v.  Com..  3  Bush,  32 .  573 

Smelser  v.  State,  31  Tex.  95,  96 850 

Smith,  Ei  parte,  3  McLean,  121 943,  944 

Smith  r.  Adkins,  L.  R.  14  Eq.  402 773 

V.  Carrington,  8  D.  S.  4  (/ranch.  62, 

2  L.  ed.  550 55,  101 

V.  Com.,  21  Gratt.  809. 468,  469 

■in.  i  Kv.  June  -'.  1887 575 

r.  Com.,  1  Duv.  224  635.  660,  662,  673,  678 
v.  Creason,  5  Dana,  298,   30   Am. 

Dec.  688 163 

V.  Earle.  lis  Mass.  .531 252 

V.  Easton,  54  Md.  13s,  39  Am.  Rep. 

355 91 

v.  Griffith,  3  Hill.  333 356 

v.  Huson,  1  Phillim.  257 808 

V.  Joyce,  12  Barb.  21. 425 

v.  Kelley,  2:3  Miss.  167 863 

V.  Knowlton,  11  X.  H.  191. 22,    23 

v.  Milburn,  17  Iowa,  30 873 

v.  New  York  Cent.  K.  Co.,  43  Barb. 

225 27,     2S 

v.  Pat  m.  31  X.  Y.  f,6  245 

v.  People,  8  Colo.  457.. 184 

v.  People,  53  X.  Y'.  Ill,  13  Am.  Hep. 

474 706,  7:30,  736,  738,  740 

r.  People.  47  X.  Y.  3C3 720 

v.  Price.  8  Watts.  4i7 271 

r.  Shultz,  2111.490 728 

p.  Smith,  49  Ala.  156 23 

17.  Smith,  5  Or.  186 850 

17.  Smith,  1  Tex.  621,  46  Am.  Dec. 

121 801 

17.  State,  79  Ala.  21 349 

13.  State,  10  Ind.  106 493 

V.  State,  37  Ala.  472 508 

17.  State,  25  Fla.  517 578 

13.  State,  47  A  la.  .540 599 

e.  State,  58  Ind.  340 734 

17.  State,  39  Ala.  554. S47 

17.  Stickney,  17  Barb.  489 374 

i?.  United  States,  30  C.S.5  Pet. 292, 

8L.  ed.130 56 

r.  Walton,  8  Gill,  77 113 

v.  Whitney,  116  U.  S.  167,  29  L.  ed. 

601 908 

13.  Wood,  3Campb.  323 884 

13.  Yarvan,  69  Ind.  445,  35  Am.  Rep. 

232 606 

Smith's  Case,  Mackintosh's  Works,  504.  911 

Smvth  13.  Caswell,  67  Tex.  567.. 116 

Smythe  c.  Scott,  106  Ind.  245 260 

Snediker    r.   Everingham,  27   X.   J.   L. 

150 16 

Sueed  f.  State,  5  Ark.  431 160,  1(35 

Suell  13.  Clinton  M.  E.  Church  Trustees, 

58  Hi.  292 261 

Snow  17.  Grace.  29  Ark.  136 378 

r.  Paine,  114  Mass.  520 455 

13.  State,  58  Ala.  375 _  136 

Snyder,  Re,  17  Kan.  .542 708 

Snyder  v.  Andrews,  6  Barb.  43 583 

13.  Com.,  85  Pa.  519    207,374 

17.  State,  59  Ind.  105 136 

Sodusky  v.  McGee.5  J.  J.  Marsh.  621....  361 

Sohnier  r.  Pe  1 378 

Somerville  r.  Richards,  37  Mich.  21m 156 

Sontag,  Ex  parte,  64  CaJ.  525       ....        256 
Soper  17.  Super,  29  Mich.  305,  306  850 


liv 


TABLE    OF    OASES. 


Southard  p.  Rexf ord,  6  Cow.  858  

....296,  297.  361,  822 
South  Bend  v.  Hardy,  98  [nd.  577  ...334,606 
South  Ottawa  v.  Perkins,  94  U.S.  260,24 

..  154 56 

South  worth  p.  Stevens,  10  Johns.  443...  898 

Sparks  p.  Com.,  88  Ky.w 579,  584 

Spear  p.  Drainage  Conors.,  113  111.  (534...  142 

iv.  Burton,  31  Miss.  554 22 

p.  State,  2  Tex.  App.  -44 436 

p.  State,  2  Ohio  St.  583 493 

Bpeehl  p.  Howard,  83TJ.  S.  16  Wall.  5ti4, 

21    L.  ed.  348 -  414 

Speed  r.  II. Triii.  4  Mo.  356 230 

Spencer  p.  State,  20  Ala.  24.. 501 

p.  Traford.42  Md.  I... 206 

Speyer  p.  Stern,  2  Sweeney,  510 159 

Spier,  Re.  12N.  C.  491 617 

Spies,  Ex  parte,  123  U.  S.  131,  31  L.ed.  80 

.  84,   345 

Spies  v.  People,  122  111.  1  B4.  156.237,349,906 

Spill  p.  Maule.  L  Et.  4  Exch.  232 894 

Spivey  v.  State,  26  Ala.  90 328 

Si nemore  p.  State,  25  Tex.  App.  358    L71 

S.  P.  K.  P.  Taylor.  13  Cox,  C.  C.  77 149 

Bpratl  u.State,8  Mo.247 399 

Springdale  Cemetery  Asso.  p.  Smith,  24 

III.   I-  439 

Spring  Garden  Mut.  fas.  Co.  p.  Evans, 

15  Mil.  54, 74  Am.  Dec.  555  ....    97 
Spurr  P.Trimble,  1  A.  K.  Marsh.278...    23 

Stack  p.  Stack,  6  Dem.  280  863 

Btacj  p.  Graham,  3  Duer,444... 159 

Stage  p.  People,  5  City  II  ill  Rec.  177        631 
Stalker  p.  Gaunt.  12  X.  V.  Leg.  Obs.  132    i- 

Stallings  v.  State,  47  Ga.  572    ..        491 

Standard  Oil  Co.  p.  Van  Etten,  107  U.  S. 

325.27  L.  ed  319.... 70 

Standen  p.  Standen,  6T.  K.  331 19 

Stanley,  Ex  parU  .  25  Tex.  App.  372  944 

Stanley  p.  State,  26  Ala.  30  —16,  14:.' 

p.  State,  24  Ohio  St.  166,  1">  Am. 

Rep.  604 741 

Stanton  p.  Andrews,5  V.  ('.  Q.  B.  22 

P.  Star.-.  Ti  Ark.  317     206 

Stanwood  p.  McLellan,48  Me.  275 101 

Starin  p.  Kelly,  88  X.  Y.  418. 454 

v.  People,  15  N.  V.  341 419 

Starkey  v.  People,  17  [11.20.. 533 

Starkey's  App.  61  Conn.  199. 74 

Starr  p.  Peck,  1  Hill,  .:  '  864 

p.  Torrey,  22  N.  J.  L.  190 94 

•.  Hogan,  120  fad.  207      198 

.  Abbey,  29  Vt.  60,  67  Am.  Dec. 

r.  Abbott,  8  W.  Va.  Ui'.'.'.Y.'.'.V.'.'.'.  758 

r.  Able,  65  Mo.  357 356 

v.  Adams,  20  Kan.  311 180 

v.  Adams,  78  Io  26,  366 

V.  A  Or.  525  408 

v.  Adams,  1   Houst.  Crim.  Cas.  361  901 
V.  Addington,  1  Bail.  L.  310  746 

v.  .Mi  Cbuey,  11  Nev.  79,  33  Am. 

Rep.  530  •:  .  691, 

v.  Ah   Lee,  7  Or.  2S7,  B  Or.  214    440.448 

v.  Alexander,  66  Mo.  148 579 

v.  Alexander,  11  N.  C.  182. 

r.  Allen,  lit  Mo.  07. 163 

r.  Allen.  ,  C.805..     

V.  Anderson.  2  Bail.  L.  565  240 

V.  Anderson,  17  Iowa.  112.. 703 

r.  Andersi  ■  .  -  i  Mo.  309  771 

p.  A  •<    I  ..  771 

V.Archer,  54  N.  H.  465..  354 

V.  Arnold,  35  N.  C.  1-1 27,  12o 

r.  Ashi  r.  50  Ark.  427 711 

v.  Avery,  17  Wis.  073 258 

v.  Avery,  44  N.  H.  392.. 020 

p.  Ayi  r,  23  X.  H  2C6 

v.  Avery,  7  Conn.  268, 18  Am.  Dec. 

105  882 

r.  Bacon,  13  Or.  143.. 333 


State  v.  Baron,  41  Vt.  526,  98  Am.  Dec. 

616      

v.  Bailey,  32  Kan.  83 

V.  Bailey,  31  X.  H.521 

r.  Bailey,  94  Mo.  311 

v.  Baker,  43  La.  Ann.  11GS 

V.  Baldly,  17  Iowa,  39 253, 

v.  Baldwin,  36  Kan.  3...   

105,  107,149,  503, 

V.  Banks,  48  Ind.  197 

u.  Barker,  28  Ohio  St.  583 

r.  Harnett.  3  Kan.  250 

v.  Bartlett,  43  X.  H.  224,  80  Am. 

Dec.  154 .635, 

r.  Bartlett,  11  Vt.  650 

r.  Hatch. 'lor.  15  Mo.  207 

r.  Bateman,  52  Iowa,  604 

v.  Battle,  7  Ala.  261 

r.  Bayne,  88  Mo.  0:4. 

v.  Beaucleigh,  i»2  Mo.  4S0  

r.  Beaudet,  ->3  Conn.  536,  55  Am. 

liep.  155 

r.  Behimer,  20  Ohio  St.  572 

v.  Belcher,  13  S.  C.  459 

V.  Bell,  49  Iowa,  440 187, 

V.  Benham.  23   Iowa,  154,  92  Am. 

Dec.  410... 569, 

v.  Benner,  04  Me.  267 255, 

r.  Bennett,  52  Iowa,  724 

p.  Benthall.  82  N.  C.  664.. 

p.  Benton,  79  Me.  314. 

r.  Bergman,  6  Or.  :541 

p.  Berkley.  92  Mo.  41 

r.  Berry,  21  Me.  171 

v.  Bertin,  24    La.  Ann.  46. 160, 

V.  Beuchier,  103  Mo.  203.. 

v.  Bilansky,  3  Minn.  240 

V.  Bird.  1  Mo.  417. 

v.  Bishop,  7  Conn.  185. 

r.  HlaisdeU,  59  N.  H.-^S 

r.  Blankensbip,  21  Mo.  501 

v.  Bohan.  19  Kan.  28,  55 

v.  Boiee,  1  Houst.  Crim.  Cas.  355.. 

f.  Bostick,  4  Harr.  (Del.)  583 

V.  Bowen,  10  Kan.  475 

p.  Bowen.  4  McCord,  L.  254 

v.  Bowles,  52  N.  C.  579 

r.  Bowser,  42  La.  Ann.  936 

r.  Boyd,  2  Hill,  L.  288. 

v.  Boyland,24  Kan.  186  

r.  Bradley  (Vt.)  Aug.  25,  1892 

r.  Brady,  87  Mo.  142:. 

p.  Branuum,  95  Mo.  22 

v.  Brassiield,  81    Mo.  152,  51  Am. 

Rep.  234 

r.  Bregard,  76  Mo.  322.. 

v.  Brent,  loo  Mo.  231   

v.  Brewer,  98  X.  C.  607 

v.  Brewster,  7  Vt.  118 

v.  Bn d--e.s  29  Kan.  138 437, 

v.  Bridgman,  49    Vt.  202.  24  Am. 

Rep.  124  74.  156,  845,851,  854,874, 

v.  Brinkhaus,  :>4  Minn.  285 

v.  Brinyea,  5  Ala.  241 

v.  Britt,  7-  X.  C.  4:19. 

!'.  Britton,  4  McCord,  L.  256 

._ 805,  807, 

V.  Brockman,  46  Mo.  566  495, 

v.  Brooks,  92  Mo.  542. 344,  500, 

v.  Brooks,  39  La.  Ann.  817. 

V.  Brooks,  3  Humph.  72. 

r.  Broughton,  29  X.  C.  96 .204, 

r.  I in  i wn,  22  Kan.  222 

v.  Brown,  3  Strobh.  L.  516 607, 

v.  Brown,  2  N.  C.  100,  1  Am.  Dec. 

548 


Bryan,  34  Kan.  63.. 

Bryce,  II  S.  C.  342. 

Bucklev,  40  Conn.  243... 
Bullard,  16  X.  H.  139.... 

Bullock,  13  Ala.  413 

Bundy,  24  S.  C.  439 


102 
206 

401 
580 
345 
254 

530 
196 
532 

408 

636 
741 
413 
1st 
617 
700 
344 

134 
617 
125 

879 

570 
320 
165 

413 
408 
404 
163 
504 
104 
150 
301 
240 
10 
62 
173 
75S 
630 
492 
13 
379 
861 
582 
399 

a  is 

504 
339 
261 

868 
404 
344 
771 
930 
439 


636 

801 


490 
524 

578 
617 
410 
594 

727 

741 

820 


. . .  203,  255 

440 

253 

621 

687 


.642. 


TABLE    OF    CASES. 


lv 


State  v.  Burgdorf,  53  Mo.  65J 813 

v.  Burke,  30  Iowa,  331 5011 

v.  Burnett,  81  Mo.  119 259 

v.  Burnett,  119  Ind.  302 714 

V.  Buraham,  9    N.  H.  34,  31  Am. 

Dee.  217 882 

V.  Burnsiue,  37  Mo.  343 243 

v.  Byrne,  47  Conn.  466  405,  827,  830   831 

v.  Cain,  8  N.  C.  352.- .403,  113 

V.  Cain,  20  W.  Va.  679 407,  758 

v.  Calkins,  73  Iowa,  128 116,  744 

V.  Camden,  48  N.  J.  L.  89 426 


Cameron,  2  Finn.  495. 
Campbell.  35  S.  C.  28. 
Cantrell,  21  Ark.  127. 
Carland,  90  N.  C.  668. 
Carr,  21  N.  H.  166.... 

Carr,  6  Or.  1S3 

Carr,  37  Vt.  191. 


529 
584 
203 
140 

243 
404 
195 


v.  Carson,  66  Me.  116 351 

D.Carver,  12  R.  I.  285 404 

v.  Carver,  65  Iowa,  53.. K"s 

V.  Center,  35  Vt.  378.. 530 

v.  Chamberlain,  89  Mo.  129 341,  344 

v.  Chamberlain,  30  Vt.  559... 79k 

V.  Chambers,  43  La.  Ann.  1108 380 

V:  Chambers,  39  Iowa,  179 499 

v.  Chambers,  47  Alb.  L.  J.  163 846 

v.  Ctiavis,  80  N.  C.  353 573 

v.  Christian,  66  Mo.  138 765 

v.  Chyo  Chiagk,  92  Mo.  395 509 

u.Clark,  46  Kan.  65... 700 

V.Clarke,  69  Iowa,  294 835 

v.  Clements,  15  Or.  243.. 241 

V.  Clinton,  67  Mo.  380,  28  Am.  Rep. 

506 345,348 

v.  (  louser,69  Iowa,  313 771 

v.  Clyburn,  16  S.  C.  375.. 158 

t\C6ckraa,l  Bail.  L.  50 7«k 

i  .  Cohn.  9  Nev.  179 347,  352.  445 

r.  Coleman,  27  La.  Ann.  691 159,  636 

V.  Collins,  70  N.C.  241,  16  Am.  Hep. 

771       182 

13.  Collins,  32  Iowa,  36 .569,  5S9 

v.  Cone,46N.C.  18 B31 

v.  Conner,  5  Blackf.  325 255 

V.  Connor,  5  Coldw.  311 616 

v.  Cook,  23  La.  Ann.  347. 35;.' 

V.  Cook,  52  Ind.  574 773 

v.  Cook,  65  Iowa,  5(50 831 

v.  Copp,  15  N.  H.212 401 

V.  Cosgrove,  42  La.  Ann.  753 578 

13.  Covington.  2  Bail.  L.  569 526 

13.  Cowan,  1    lb-ad.  280. 399 

v.  Cowell,  12  Nev.  337... 75,  76 

v.  Cox,  67  Mo.  392. 345,  348,  904 

13.  Craft,  72  Mo.  456 240 

13.  Crawford,  11  Kan.  32 

...26,  426,635,638,  639 

V.  Crawford,  34  Mo.  200 440 

r.  Crawford,  34  Iowa,  40 867 

v.  Cross,  27  Mo.  332 160,  164,  626 

v.  Cross,  12  Iowa,  66,  79  Am.  Dec. 

519 831 

v.  Crowley,  13  Ala.  172, 174 850 

V.  Crowley.  41  Wis.  271,  22  Am. 

Rep.  719 900 

V.  Cro wner,  56  Mo.  147 847 

v.  Crozier,  13  Nev.  300 447 

v.  Cueuel,31  N.  J.  L.  249 206 

v.  Curran,  51  Iowa,  112 872 

V.  Curtis,  39  Minn.  357 352 

v.  Cutshall,  109  N.  0.  764 847 

13.  Dakin,  52  Iowa,  395.. 160 

V.  Dale,  8  Or.  229 404 

v.  Daley,  53  Vt.  442,  38  Am.  Rep. 

694. 598 

13.  Dame,  60  N.  H.  479,  49  Am.  Rep. 

331 401 

13.  Danby,  1  Houst.  Crim.  Cas.  175 

635,  640 

V.  Danfortli,  48  Iowa,  43,  30  Am. 

Rep.  387 861 


State  r.  Dart,  1  Cow.  Crim.  Rep.  49 137 

v.  Daubert,  42  Mm.  242 156,  414 

v.  Davidson,  30  Vt.  377, 73  Am.  Dee. 

312 469 

13.  Davis,  12  R.  I.  492,  34  Am.  Rep. 

704 203 

V.  Davis,  38  N.  J.  L.  176 450,  727 

v.  Dayton,  23  N.  J.  L.  49 399 

v.  Dearborn,  59  N.  H.  348 71 

v.  De  Lay,  93  Mo.  98 708 

v.  Demareste,  41  La.  Ann.  617 578 

v.  De  Wolf,  8  Conn.  93, 20  Am.  Dec. 

90 .289,  818,  824,  826, 827,  831 1,  <H 

V.  Dickinson,  41  Wis.  299...  432,  529.  531 

v.  Diekman,  11  Mo.  App.  538 575 

v.  Dickson.  78  Mo.  43S 575 

V.  Dineen,  10  Minn.  408 439 

v.  Divoll,  44  N.  H.  142 792 

V.  Dixon,  75  X.  C.  275 569 

13.  Dockstader,  42  Iowa,  436.... 598,  599 

V.  Dodson,  4  Or.  64 576 

13.  Doherty,  2  Overt.  80 631 

v.  Donnelly,  69  Iowa,  705,  58  Am. 

Rep.  234 569 

v.  Donovan,  61  Iowa,  278 598 

13.  Dooly.  64  Mo.  146 160,  165 

v.  Douglass.  20  W.  Va.  770 281 

13.  Douglass,  81  Mo.  231 341,344 

v.  Downs,  91  Mo.  19 595 

v.  Draper,  1  Houst.  Crim.  Cas.  531.  636 

V.  Dubois,  54  Iowa,  363 .....469,  476 

V.  Dudley,  7  Wis.  664 285 

13.  Duffv."  15  Iowa,  125 297 

13.  Dumphey,  i  Minn.  43o 594 

V.  Dunlap,  24  Me.  77 710 

V.  Dunn.  18  .Mm.  419 448 

V.  Edwards,  2  Nott  &  Ml-C.  L.  13... 

!  296,297 

V.  Edwards,  19  Mo.  671 406 

v.  Egan.  59  b>wa,  636 363 

B.  Elden,  41  Me.  165 613 

v.  Elkins.  101  Mo.  344 575 

r.  Elliot,  34  Tex.  148 408 

V.  Ellis,  74  Mo.  385,  41  Am.  Rep.  321  8;ffl 

u.  Elvins,  101  Mo.  246 261 

13.  Emerson,  48  Iowa,  174 753 

13.  Evans,  33  W.  Va.  417 576,  581 

v.  Ezekiel,  33  S.  C.  115 114 

V.  Falk,  46  Kan.  498 71 

v.  Fancher,71  Mo.  460 404 

13.  Farley,  4  McCord,  L.  317 898 

13.  Farmer.  84  Me.  436 67 

«.  Fassett,  16  Conn.  457 410 

13.  Fay,  43  Iowa,  651 349 

13.  Fellows.  3  N.  C.  340 403 

v.  Felter.  3.!  Iowa,  50 

635,  636,  638,  040,  641 

13.  Felter.  25  Iowa,  67  . .  .652,  655,  (362,  673 

v.  Fenly,  18  Mo.  445 773 

v.  Ferguson,  9  Nev.  106... 594 

v.  Fields,  Peck   (Tenn.i  140 494 

13.  Files,  3  Brev.304 165 

r.  Fisher,  33  La.  Ann.  1344 594 

13.  Fitzgerald.  'Si  Iowa,  263 386 

v.  Flanders,  38  N.  H  324 321,  77.s 

13.  Fletcher,  18  Mm.  426... 218 

v.  Fletcher,  35  N.  J.  L.  445 720 

v.  Flint,  62  Mo.  393 404 

13.  Ford,  38  La.  Ann.  797 174 

v.  Ford,  3  Strobh.  L.  517 215,  584,  598 

v.  Forshner,  43  N.  H.  89,  80  Am. 

Dec.  132 6 

Forsythe,  89  Mo.  669 242- 

Foster,  9  Tex.  65...- 203 

Fowler,  52  Iowa,  103 ill 

Fraser,  2  Bay,  96.. 163. 

Frazier,  6  ii.i.vt.  539.. 499 

.  F  n  (deric,  69  Me.  400 52 

.  Fredericks,  B5  Mo.  145 .498,  .524 

.  Freeman,  5  Conn.  348    276 

.  Freeman,  1  Speer,  L  57 542 

Froiseth,  16  Minn.  298. 4JU 

Funek,  17  Iowa,  365 253 


hi 


TABLE    OF   CASES. 


State  v.  Furlong,  19  Me.  225 784 

i  er,  Wright  (Ohio)  392.. .  674 

v.Gardner,  1  Root,  485 286 

v.  Gi  .    (mi.  970 758 

r.  Qarrand,  5  Or.  816 448 

0.  Garria,  Bfi  \.  C.  r33 709 

D.  Garvey,  ll  Minn.  L54 626 

o.  Gedioke,  13  V  J.  L.  86 340 

V.i ,92  N.C.766 l'-K) 

O.Gee.  85  Mo.647 440 

o.  George,  62  [owa,  682 771 

v.  German,  54  Mo.  526, 14  Am.  Rep. 

181 408,  524 

v.  Gibeon,  26  La.  Ann.  71 794 

o.  Gilmore,9  W.  Va.641.— 408 

i:  Givens,  5  Ala.  754. --  113 

v.  Glahn,  .'7  Mo.  679 575,  584 

r.  Glass,  50  Wis.  218,  30  Am.  Rep. 

B45. 357 

v.  Gleason,  1  Nev.  173 007 

Idsborough,  1   Houst.  Criin. 

540 

v.  Gonce,79  Mo.  600 62,  437 

.i  u  h,  19  Yi.  lit.,  47  Am.  Dec. 

5(19,577 

V.  Goodrich.  46  N.  EI.  186.. 737 

p.  Gordon,  46  N.  J.  L.  432 286 

v.  Grac  !,  18  Minn.  398 264,  266,  367 

v.  Graff.  47  [owa,  384 515 

o.  Graham,  62  [owa,  108. 246 

i .  I  • :  ilium.  74  N.  C.  646,  21  Am.  Rep. 

693 

V.  Grant,  79  Mo.  113,  49  Am.  Rep. 

218 363,396 

r.  Grate,  68   Mo.  22 -  611 

v.  Graves,  is  Colo. — 420,534 

v.  Gray,  14  Nev.  212   1(55 

v.  Grear,  28  Minn.  126,  11  Am.  Rep. 

498 

v.  GreeDwade,  72  Mo.  298 463 

v.  Green,  7  Wis.  676 708 

17.  Gregor,  21  La.  Ann.  473. 578 

r.  Griffice,  74  N.  C.  316 203 

17.  Guild,  10  N.  .1.  L.  193.  .469,  476, 492,  499 

t\  Guillory,44  La.  Ann.  -  — 57S 

r.  Gurnee,  14  Kan.  Ill 45 

i).  Gustafson,  50  [owa,  194 598 

v.  Gut,  13  Minn.  341 638,  640 

17.  Gutekunst.  24    Kan.  252 245 

f.  Hagan,  22  Kan.  490 135 

v.  Hagan,  54  Mo.  192  .    493 

v.  Balida,28  W.  Va.  499 406 

v.  Hall,  9  Nev.  58  — 577,  594.  595 

v.  Had,  76  Iowa,  85. 706 

r.  Hall.  10   Kan.  338 934 

r.  Hannett,  54  Vt.  83 185 

».  Hanson, 39  Me.337... 408 

v.  Harden,  3  Rich.  L.  533 203 

v.  Hardin,  16  Iowa,  623,26 Am.  Rep. 

117 .61  i.  688 

V.  Flare,  95  N.  C.  682 174 

v.  Har#rave,  65  N.  C.  466 816 

v.  Harlow,  2]  Mo.  446 621,636 

V.  Harp.  31  Kan.  498. 408 

v.  Harper,  35  Ohio  St.  78,  35  Am. 

Rep.  596... 529,  532 

r.  Harrington,  12  Nev.  125 577 

V.Harris,  '"■  N.  C.  1  157 

7-.  Harris,  59  Mo.  550 577 

v.  Harrison,  50  X.  C.  115 771 

v.  Harrod,  Krj  Mo.  590 577 

V.  Hascall,  6  N.  II.  352 795 

v.  Hastings,  53  N.  H.  453.. 110 

v.  Hattaway,  2  Nott  &  Mc.  C.  L. 

ll-   789 

V.  flav.'ly.  21  Mo.  198  170 

v.  Hayden,  45  Iowa,  17 i39 

v.  Hayes,  L05  Mo.  70 5:'4 

17.  Hays  23  Mo.287... 441,448,  578 

v.  Hayward,  1  Nott  \-  McC.  L.  546 

„ 

V.  Hazleton,  15  La.  Ann.  72...  .       316 


State  v.  Heatherton,  60  Iowa,  175 875 

v.  Hedge,  6  Ind.  333 406 

V.  Heed,  57  Mo.  254 868 

v.  Ht 'mm,  82  Iowa,  609 871 

V.  Henderson,  1  Rich.  L.  179 898 

V.  Henn,  39  Minn.  476 575 

u.  Henrv,  50  N.  C.  65 ..598,  600 

17.  Henry,  48  Iowa,  403 753 

V.  Herd,  57  Mo.  252 794 

v.  Hewitt,  31  Me.  396 900 

17.  Hicklin^,  41  N.  J.  L.  208 900 

17.  Higdon,  32  Iowa,  262 880 

17.  Higgins,  13  R.  I.  330 426 

17.  Hill,  20  N.  C.  491 573 

v.  Hill,  91  Mo.  423 875 

D.  Hilton,  3  Rich.   L.  434,  45  Am. 

Dec.  783 805,  807,  S09 

17.  Hirsch,  45  Mo.  429 426 

17.  Hockett,  70  Iowa,  442 662,  764 

17.  Hodsre,  50N.  H.  510 733 

17.  Hodg-skins,  19  Me.  155 805 

17.  Hogard,  12  Minn.  293 469- 

17.  Holden,  42  Minn.  350 551 

17.  Hollis,  1  Houst.  Crim.  Rep.  24..  758 

17.  Hollowav,8  Blackf.  45 276 

17.  Holme,  54Me.  153 448 

v.  Homes,  17  Mo.  379,  57  Am.  Dec. 

269  1 89 

17.  Honig,78M"oV249""."."II""."I"  181 

v.  Hood,  51  Me.  364 69 

v.  Hooker,  17  Vt.  658 387 

V.  Hopkins,  50  Vt.  316... 86,  90, 110,  116 

17.  Hopkirk,  84  Mo.  278 524 

V.  Horn.  43  Vt.  20.. 110- 

17.  Home,  9  Kan.  119 352,  626 

17.  Horton,  33  La.  Ann.  289 125 

17.  House r,  28  Mo.  233 355 

17.  Houston.  50  Iowa,  512. 281,  282 

17.  Howard,  17  N.  H.  171.206,  252,  495,496 

17.  Howard,  32  Vt.  380 529 

17.  Howard,  4  McCord,  L.  159 798 

v.  Howerton,  58  Mo.  581 747 

17.  Hoyt,  46  Conn.  330 

148,  149,  426,  635,  640,  663 

17.  Hoyt,  47  Conn.  518,  30  Am.  Rep. 

89 182 

V.  Huff,  11  Nev.  17 346 

v.  Huirhes,  35  Kan.   020,   57  Am. 

Rep.  195 804 

17.  Hundley,  40  Mo.  414 620,  036 

17.  Hunsaker.  lOOr.  497 241 

17.  Hunt,  91  Mo.  490.. 243 

17.  Hurley,  54  Me.  502. 40 

V.  Hurley,  1  Houst.  Crim.  Cas.  28.  021 

17.  Hutinf?.  21  Mo.  464 036 

17.  Hutson,  15  Mo.  512 173 

17.  Hyland,  19  West  Coast  Rep.  622  244 

17.  Infold,  49  N.  C.  210 573 

17.  Ivey,  100N.  C.  53) 403 

17.  Jackson,  17  Mo.  544,59  Am.  Dec. 

281 : 218,578 

17.  Jackson,  95  Mo.  023 248 

17.  Jackson,  37  La.  Ann.  890 594 

17.  Jackson  (Tenn.)  1  L.  R.  A.  373..  932 

17.  Jacobs,  6  Tex.  99 255 

17.  Jacobs,  50  N.  C.  259 692,  694 

17.  James.  37  Conn.  355 45 

17.  James,  34  S.  C.  49 416 

v.  James,  58  N.  H.  67 737 

17.  Jamison,  74  Iowa,  613 700 

V.  Jansen,  22  Kan.  498 524 

17,  Janvier,  37  La.  Ann.  645 594 

v.  Jarvis.  20  Or.  437 838,  840 

17.  Jennings,  18  Mo.  4*5 163,  448 

17.  Jeuninsrs,  15  Rich.  L.  42 255 

17.  John,  30  N.  C.  330 626 

U.Johnson,  26  Minn.  316 13 

V.  Johnson,  40  Conn.  142 

....  194,  241,  443,  444. 624-626,  662, 663 

17.  Johnson,  91  Mo.  439 293 

17.  Johnson,  12  Nev.  121 356 

17.  Johnson,  16  Nev.  36 436 


TABLE    OF    CASES. 


LV11 


State  o.  Johnson,  8  Iowa,  525 443 

13.  Johnson,  76  Mo.  121 538 

V.Johnson,  G7  N.  C.  58 693 

13.  Johnson,  37  Minn.  493 771 

v.  Jones,  64  Iowa,  349 26 

l).  Jones,  77  X.  C.  520 183 

v.  Jones,  50  N.  H.  369,  9  Am.  Rep. 

842.426,  635,  638,  639,  645, 653,  662, 670 

v.  Jones,  54  Mo.  478 496,  498,  499 

v.  Jones,  51  Me.  1 25 521 »,  52 1 

13.  Jones,  1)7  X.  C.  469 771 

13.  Jones,  13  Iowa,  270 900,901 

V.  Justice.  13  X.  C.  199 720 

13.  Kabrieh,39  Iowa,  277 599 

v.  Kane, 63  Wis.  202 751 

13.  Keaeh,  40  Vt.  113 900,901 

13.  Kearley.  26  Kan.  77 439 

i).  Keath,  83  N.  C.  626 621 

v.  Keeler.  28  Iowa,  553 409,  731 

v.  Keene,  50  Mo.  357 589 

v.  Kejjiron,  55  N.  H.  19 428 

13.  Kelsoe,  76  Mo.  505,  11  Mo.  App. 

91  616 

v.  Kemp,  87  N.  C.  538 .74,  845,  85] 

v.  Kennedy,  20  Iowa,  569.. 274 

13.  Kibby,  7  Mo.  317 218 

V.  Kimbrough,  13  X.  C.  431 43 

v.  King,  44  Mo.  238  245 

v.  King,  9  Mont.  445 584 

v.  Kinnev.  44  Conn.   153,  26  Am. 

Rep.  436 826,  834 

13.  Klintrer,  43  Mo.  127 636,  678 

v.  Klitzke,  46  Minn.  343 349 

13.  Knapp,  6  Conn.  417... 11 

13.  Knapp.  45  X.  H.  156 836 

v.  Knox,  61  X.  C.  312 190 

v.  Krieger,  68  Mo.  98 737 

V.  Kring,  74  Mo.  612 396 

13.  Kroeger,  47  Mo.  552 778 

v.  Kobe,  20  Wis.  217,  91  Am.  D  <•. 

390  706 

V.  Labuzau,  37La.  Ann.  489 594 

13.  Ladd,  32  X.  H.  110 7:17 

V.  Lange,  59  Mo.  418. 165 

v.  Lanier,  90  X.  C.  714 403 

V.  Lapage,57  X.  H.  245 

....  73.  207.  208,  217.  266,  412,  443, 

449.  452.  597,  601, 608.  712,  713,  735,  856 

13.  Laque,  41  La.  Ann.  1070 583 

v.  Lattin,  29  Conn.  389 276 

v.  Lautenschlatrer,  22  Minn.  514  .  443 

v.  La  whom,  88  X.  C.  634 351 

V.  Lawrence,  57  Me.  574  426,  635,  640,  641 

v.  Laxton.  78  X.  C.  504 75,  826 

v.  Leabo,  89  Mo.  247 185 

13.  Le  Blanch,  31  X.J.  L.  82 741 

v.  Lee,  66  Mo.  165.. 248,  579 

V.  Lee.  22  Minn.  407,  21  Am.  Rep. 

769 609,610 

v.  Lentz,  45  Minn.  177. 197 

V.  Levy,  5  La.  Ann.  64 276 

V.  Levy,  23  Minn.  104 290 

•U.Lewis,  74  Mo.  222 160 

v.  Lewis,  20  Xev.333 642,  678,  680 

v.  Libbv,  44  Me.  469 805,  807,  809 

v.  Lightbodv,  38  Me.  200 2  B 

13.  Lindlev,    51  Iowa,  343,  33  Am. 

Rep.  139 598 

D.  Linnev.  52  Mo.  40 156,  570 

v.  Little.  42  Iowa,  51 400 

V.  Long.  103  Ind.  481 700 

13.  Loveless.  17  Xev.  427 732 

13.  Lowhorne,  66  N.  C.  638 495,  499 

13.  Lurch.  12  Or.  99 341,  345 

13.  Lvon,  12Corm.  487 240 

V.  Lynch  (Mo.)  4  L.  &  Eq.  Rep.  6.53  638 

13.  McCahlll,  72  Iowa,  111 575,  583 

v.  MeCall,  4  Ala.  643,  39  Am,  Dec. 

314 750 

V.  McCants,  1  Speer.  L.  384 626 

V.  Mc(  a.-ki-v.  104  Mo.  644 871 

v.  Mace,  76  Me.  04 403 


State  v.  McClintic.  73  Iowa,  063 S79 

w.McCluer,  5  Xev.  132. 771 

13.  McComb,  18  Iowa,  43 163 

v.  McCoy,  29  La.  Ann.  593 578 

13.  McCoy,  34  Mo.  531 63ft 

v.  MeCrackeu,  66  Iowa.  .569 688 

v.  McCroskev.  3  McCord,  L.  308...  789 

13.  McCunnilf,  70  Iowa.  217 174 

-0.  McDonald,  85  Mo.  .539 259,  261 

v.  McDonald,  25  Mo.  176  ...805,  807,  809 

v.  McGinnis,  17  Or.  332 211 

v.  McGlothlen,  56  Iowa,  544 861 

v.  McGowan,  1  S.  C.  14 469 

v.  McGraw,  74  Mo.  573 344 

v.  McKean.  36  Towa,  343,  14  Am. 

Rep.  530 508,  524,  525 

v.  McKenzie,  102  Mo.  620 578 

v.  Mackey,  12  (jr.  154 142 

v.  Mackey,  82  Iowa,  393 ...871,  872 

V.  McKinney  (Kan.)  March  6, 1884  575 

0.  McKinzie,  102  Mo.  620 345 

v.  McLaughlin,  70  Mo.  320 341,  344 

r.  McMurphy,  52  Mo.  251... 598,  601,  606 

r.  McNally,  37  Mo.  644 594 

v.  McXamara,  3  Xev.  71 203 

v.  Magee,  11  Ind.  1.54 706,  708 

v.  Manly,  68  Mo.  316 248 

v.  Main,  31  Conn.  572 156 

v.  Maine  Cent.  R.  Co.,  77  Me.  .541  .  232 

V.  Maloy,  44  Iowa,  104 194,  578 

t.  Maney,  51  Conn.  178.507,  511,515,  522 

C.Mann,  83  Mo.  589 161 

0.  Manuel,  64  X.  C.  601 157 

v.  Markins,    95   Ind.    464,  48   Am. 

Rep.  7.33 74,  842 

r.  Marler,  2  Ala.  43,  36  Am.  Dec. 

398 636,638 

13.  Marshall.  36  Mo.  400 259,  296,  301 

13.  Martin,  74  Mo.  547. 248 

v.  Martin,  76  Mo.  337 618 

13.  Marvin,  35  X.  H.  22.-285,  824,  836,  855 

r.  Matthews,  37  X.  H.  450 245 

13.  Matthews,  78  X.  C.  533. 569,  758 

v.  Matthews,  10  L.    R.    A.  308,    44 

Kan.  596 700 

v.  Maxwell,  51  Iowa,  314 615 

v.  Maxwell,  47  Iowa.  454 778 

v.  Mayberry,  48  Me.  218 45,  905 

13.  Meekins,  41  La.  Ann.  543 192 

13.  Melville,  11  R.  I.  418.. 404 

13.  Merrick.  19  Me.  398 753 

13.  Merrill,  13 N.  C.269.. 77 

13.  Merrinian.34  S.  C.  17 348.  603 

v.  Meshek,  61  Iowa,  316 .  W 

r.  Meyers,  99  Mo.  107 259,  191 

13.  Millain,  3  Nev.  409. 448 

13.  Miller,  47  Wis.  530 208 

13.  Miller,  10  Minn.  313 219 

v.  Miller,  53  Iowa.  209 292 

13.  Mills.  88  Mo.  417 345 

r.  Mills,  17  Me.  211 703,  700,  710,  716 

V.  Mills.  12  Xev.  403 726 

13.  Mitchell.  61  X.  C.  447 498 

13.  Molier,  12  X.  C.  263.. 798 

13.  Molisse,  36  La.  Ann.  920 536 

13.  Moody,  3  X.  C.  31.  2  Am.  Dec. 

616... 540 

13.  Moorman.  27  S.  C.  22 492 

l3.Morgan,  20  La.  Ann.  442 255 

v.  Morgan,  95  X.  C.  641 617 

13.  Morphy,  33  Iowa,  270 -     126 

u.Morris,9N.  H.  96 798 

13.  Mowrv.  37  Kan.  369 642.  663 

v.  Moxley,  102  Mo.  374 197,  5.->3 

v.  Mullen,  14  La.  Ann.  577 621 

V.  Murphy,84  X.  C.  742 732 

u.  Murphy,  6  Ala.  765,  41  Am.  Dec. 

79  813 

V.  Murrav,  11  Or.  413 642 

t3.  Myers,  82  Mo.  558.. ..457, 464,  512,  700 

13.  Myers,  30  Mo.  1H 218 

13.  Nagle,  II  Et.  1.331. 6!> 


Iviii 


TABLE    OF   OASES. 


-State  i'.  Nance.  25  S.  C.  173 

p.  Nash,  7  [owa,  347  

v.  N. lelej ,  20  [owa,  108 

I),  Nelson,  19  Mo.  393. 

r.  Nelson,  n  Nev.  334  

v.  Nelson,  68  [owa,  208 

r.  Nettlebush,  80  [owa,  257 
r.  Newcomb,  1  Houst.  Oriin. 
66 


536. 
Rep, 


.Newell,  58  N.  H.  314 

.  Nichols,  29  Minn.  357 349, 

.  Niles,  17  vt.  82 

.  Nixon,  Wrighl  (Ohio)  703 

.  Nixon, 32  Kan.  205 

.  Norris,  2  N.  ('.  438 

.  Northup,  48  Iowa,  583,  30  Am. 
Rep.  408 

.  Norwood,  71  N.C.  247  

.  O'Bannon,  1  Bail.  I/.  144.. 

.  Ober,  52  N.  M.  159,  13  Am.  Hep. 



.  O'Brien,  7  R.  !.  338  145, 140, 

.  oilntt,  4  Blackf.  355 

.  Olds,  I90r.  397      24(1, 

.  Oliver,:.'  Houst  (Del.) 585 

.Oliver.  13 La.  Ann.  10U3 

.  O'Neal,  29  N.  C  251  598, 

.  ( trmiston,  66  [owa,  143 

.  Oscar,  52  N.  C.  305 

.  Ostrander,  18  Iowa,  4:35.  .440,  495, 

.  i  >wen,  78  Mo.  367 

.  Owens,  7!'  Mo.  620 

.  Packwood,  26  M<>.  341 239, 

.  Pagels,92  Mo.300 

.  Painter,  50  [owa,  317. 

i,  104  N.  C.  679 

.  Parker,  96  Mo.  382 

.  Parker,  61  N.  C.  175 

.  Parker,13  Lea,  226 

.  Parker,   1    1).  Chip.  298,  11  Am. 

Dec.  735  

.  Parks,  21  La.  Ann.  251   

.  Partlow,    90    Mo.    608,    55    Am. 

Rep.  31 

.  Patrick,  48  N.  C.  443 

.  Patterson,  73  Mo.  695.. 

.  Patterson,   88  Mo.   88,  57    Am. 

Rep.  371 341,344,  868, 

.  Patterson,  45   Vt.  308,  12   Am. 

Rep.  .'<  0 26,540, 

.  Paulk,  18  s.  c.  515 

.  Payne.  66  N.  C.  609 .37, 

.  Pearce,  15  Nev.  19]  

.  Penny,  70  Iowa,  190 

.  Perkins,  m  N.  U.377.. 

.  Peter,  li  La.  Ann.  527 

.  Peterson,  41  Vt.  511 

.  Pi  ttaway,  1"  N.  o.  623    

.  Pfetferle,  36  Kan.  90 

.  Phair,  48  Vt.  366 

.  Phelps,  11  Vt.  116,34  Am.  Dec. 

672 

.  Phi  Ips,  74  Mo.  128 498. 

.  Pierce,  65  [owa,  89 

.  Pike,  21   \.  II.  344      .. 

.  Pike,  49  N.  H.399,  6  Am.  Rep.  53.3 

25,  26,  105,  644,  661, 

.  Pints  64  Mo.  317 

.  Pippin.  ^  N.  C.  646 74"  845 

.  Pitts,  11  [owa,343 

.  Porter,34  [owa,  140 123 

.  Port.!-.  26  Mo.  201 

.  Porter,  38  Ark.  637 

Porter,  75  Mo.  171 '341 

.  Potter,  52  Vt.  33 

ON.  C.  457  642 

Pratt,  15  Rich.  L.  47 

Pratt,  l  Houst.  Orim.  Cas".  269 

Pri«  e.  11  N.  J.  L.  241 

Pritchett,  106  N.  0.  367 

Prizer,49  Iowa.  531,31  Am.  Rep. 
155 


Stale  r.'Probnseo,  46  Kan.  311) 352 

v.  Quarrel,  2  Pay,  150,  1  Am.  Dec. 

637 252 

v.  Quin,  3  Brev.  515 509 

v.  QuintOD.  5'.i  Iowa.  362 240 

v.  Randolph,  24  Conn.  363 303 

v.  Rankin,  4  Coldw.  145 919 

V.  Pawls  2  Nott.  &  McC.  L.  331. .97,  108 

r.  Ray,  53  Mo.  345    - 259 

r.  Raymond,  53  N.J.  L.  260 212 

r.  Red,  53  Iowa.  69 347 

r.  Redemeier,  71  Mo.  173,  36  Am. 

Hep.  402. .630,  640 

v.  Redman,  71  Iowa,  329 617 

V.  Reed,  02  Me.  129 220,  430,  437,  440 

V.  Reed,  71  Mo.  200 248 

v.  Reed,  39  Vt.  417,  94  Am.  Dec.  337  606 

v.  Reitz,  83  N.  C.  034 688 

V.  Renton,  15  N.  H.  174 735 

V.  Reonnals.  14  La.  Ann.  276  741 

V.  Revells,  34  La.  Ann.  381,  44  Am. 

Rep.  4:36 493 

V.  Richard.  39  Conn.  591 674 

v.  Richards,  33  Iowa,  420 834,  735 

V.  Richie,  28  La.  Ann.  327,  26  Am. 

Rep.  100 289 

r.  Rider,  90  Mo.  54 594 

r.  Roach,  3  N.  C.  352 413 

V.  Huberts,  19  N.  C.  540 403 

1:  Roberts,  34  Me.  320 900 

V.  Robinson,  59  N.  H.  275 413 

r.  Rockafellow,  6  N.  J.  L.  405 203 

V.  Rodman,  62  Iowa.  456 598 

v.  Rogers,  79  N.  C.  609 862 

v.  Rohfrischt,  12  La.  Ann.  382 360 

V.  Romain,  44  Kan.  719 350 

V.  Rose,  33  La.  Ann.  932 158 

D.Rose,  30  Kan.  501.... 758 

V.  Roswell,  0  Conn.  446 

804.  805,  809.  838,  852 

V.  Rounds,  76  Me.  123 440 

V.  Rover,  11  Nev.  348. _ 430 

V.  Howe,  43  Vt.  265 67 

v.  Rowlev,  12  Conn.  101  ....703,  708,901 

v.  Rujfan,  68  Mo.  214 345,  348,  015 

V.  Rush,  95  Mo.  199 498 

r.  Kuthven,  58  Iowa,  121 407 

V.  Ryan,  30  La.  Ann.  1176. _  594 

v.  Sarony,  95  Mo.  349  700 

V.  Saunders,  14  Or.  300 341,  345 

v.  Sayres,  58  Mo.  585 325 

v.  Scott,  80  N.  C.  365 .320,  330 

v.  Scanlan,  58  Mo.  204 276 

V.  Scott,  39  Mo.  424.... 467,  524 

U.Scott,  12  La.  Ann.  274 529 

V.  Scott,  20  N.  C.  415,  42  Am.  Dec. 

148 580 

V.  Seals,  16  Ind.  352 ..805,  807,  809 

V.  Sears,  61  N.  C.  146 190 

r.  Shaeffer,  89  Mo.  271 .437,  439 

t).  Shelledy,  8  Iowa,  477 252 

V.  Sherill,  82  N.  C.  094 167 

V.  Sherill,  81  N.  C.  550. 174 

v.  Shermer,  55  Mo.  83 328 

v.  Shields,  45  Conn.  256 814 

V.  Shippey,  10  Minn.  223,  88  Am. 

Dee.  70 .572,  573 

V.  Shiver,  30  S.  C.  392       403 

V.  Shuford,  69  N.  C.  480 207 

V.  Sims,  2  Bail.  L.  29 240 

V.  Slack,  0  Ala.  676 .017 

v.  Sling-erland,  19  Nev.  135 224,  725 

v.  Sloan,  47  M<  >.  004 569,  570,  599 

v.  Sloan,  55  Iowa.  220  _ 436 

v.  Smallwood,  75  N.  C.  104.  292 

v.  Smith,  53  Mo.  267 25,636,  041 

V.  Smith,  8  Rich.  L.  400 105 

v.  Smith,  65  N.  C.  309  240 

C.Smith,  6  R.  I.  33  253 

v.  smith,  49  Conn.  370 332 

r.  Smith,  11  Or.  205  ...  404 

V.  Smith,  21  Mo.  App.  595    440 


TABLE    OF    CASES. 


lix 


Stater.  Smith,  10  Nev.  106 

v.  Smith,  54  Iowa,  104,  37  Am.  Rep. 
192 

v.  Soper,  16Me.203 

v.  Sopher,  70  Iowa,  494 

V.  South,  28  N.  J.  L.  28,  75  Am.  Dec. 

250.. 

v.  Spencer,  21  N.  J.  L.  1% 

26,  149,  636-638 ,  »34Q,  653, 

v.  Spier,  86  N.  C.  600 

v.  Squires,  48  X.  H.  364 

v.  Staley,  14  Minn.  105 495, 

r.  Stanley.  33  Iowa,  526 

v.  Staples.  47  N.  H.  113..- 

v.  Stark,  1  Strobb.  L.  479 

v.  StarliDg.  51  N.  C.  366 636. 

v.  Starr,  38  Mo.  270 

v.  Stephenson,  4  McOord,  L.  165 .. . 

v.  Stewart,  9  Nev.  120  .._ 577, 

v.  Stewart,  60  Wis.  587,  50  Am.  Rep. 

388 

v.  Stowe,  14  L.  R.  A.  609,  3  Wash. 

206 - 

v.  Strauder,  11  W.  Va.  745,  27  Am. 

Rep.  606 63*3, 

v.  Stroll,  1  Rich.  L.  244 

r.  St  ruble,  71  Iowa.  11-. 

r.  Sullivan,  Add.  Rep.  143 

v.  Sullivan,  104  N.  Y.  481... 

v.  Summers,  9  West.  L.  J.  415 

v.  Swayze.  30  La.  Ann.  1323 

v.  Symonds,  30  Me.  128 203,  205, 

V.  Tarr,  28  Iowa,  397 817, 

v.  Tarrant,  24  S.  C.  5  3 

v.  Tatro,  50  Vt.  483 493, 

v.  Taunt,  16  Minn.  109 

v.  Taylor,  64  Mo.  358 

v.  Teeter,  69  Iowa,  717 

v.  Testerman,  68  Mo.  408 345, 

v.  Thaden,  43  Minn.  253 

v.  Thomas,  98  N.  C.  599 

V.  Thomas,  53  Iowa,  214. 

r.  Thompson.  80  Me.  194 115, 

V.  Thompson,  12  Nev.  140 .405. 

v.  Thompson,  97  N.  C.  4!«  

V.  Thompson,  1!>  Iowa,  299 

V.  Thompson,  38  Ind.39 

V.  Thorton,  20  Iowa.  80 

v.  Tomlinson,  11  Iowa,  401 

V.  Town,  Wright  (Ohio)  75 

v.  Trott,  36  Mo.  App.  29 

v.  Trout,  74  Iowa,  545 

v.  Tuller,  34  Conn.  294 

v.  Turner,  76  Mo.  350 207,  341, 

V.  Turner,  19  Iowa,  144 601, 

v.  Turner,  1  Houst.  (.'rim.  Rep.  70. 

v.  Turner,  Wright  (Ohio)  20 

V.  Turpin,  77  N.  C.  473. 24  Am.  Rep. 

455 580, 

v.  Tweedy,  11  Iowa.  351 

v.  Underwood,  57  Mo.  413 

v.  Underwood,  49  Me.  181,  77  Am. 

Dec.  254 

v.  Valentine.  29  N.  C.  225 879, 

V.  Vanderpool,  39  Ohio  St.  273,  48 

Am.  Rep.  431 

r.  Vane-ant,  80  Mo.  67  .. 

V.  Vickery,  19  Tex.  326 

V.  Vincent,  24  Iowa,  570,  95  Am. 

Dec.  753 

V.  Vines,  1  Houst.  Crim.  Rep.  424. 

v.  Vittum,9N.  H.  519 

V.  Voigbt,  90  N.  C.  741 

v.  Vorback,  66  Mo.  108 

v.  Wadsworth,  30  Conn.  57 

v.  Walker,  34  Vt.  296 492, 

v.  Walker,  26  Ind.  346 

v.  Walker,  98  Mo.  93 

v.  Wall,  15  Mo.208... 

V.  Wallace,  9  N.  H.  515.  518 

s24,  836,  851, 

V.  Waller,  80  N.  C.  401,  402 850, 


Stater.  Walsb,  3  X.  J.  L.  J.  119 267 

V.  Ward.  61   Vt.  153 29,  6*2,  685 

r.  Ward.  39  Vt.  235 11" 

v.  Ward,  19  Nev.  297 189 

v.  Warner.  74  Mo.  83 199 

r.  Warren,  34  Iowa.  453 873 

V.  Wart.  51  Iowa,  587 206 

r.  Waterman,  1  Nev.  543.-26,  039,  683 

v.  Watkins,  9  Conn.  52 77 

1?.  Watson,  7  S.  C.  63 688 

v.  Way,  S  Neb.  2*7 836,  851 

r.  Way,6Vt.311.. 850 

V.  Webb,  41  Tex.  68 239 

v.  Welch,  26  Me.  30.  15  Am.  Dec.  94  286 

u.Wells,  61  Iowa,  629 160 

V.  Wells,  1  X.  .1.  L.  628 607 

v.  Wen' worth,  65  Me.  234,  20  Am. 

Rep.  688   - 347,361 

r.  West.  1  Houst.  Crim.  Rep.  371..  149 

v.  White,  68  X.  C.  158 136 

V.  White,  19  Kan.  444,  27  Am.  Rep. 

137 352 

V.  White,  35  Mo.  500 606 

v.  White.  25  Wis.359 737 

v.  White. 29 N.  C.  180 898 

v.  Whitfield,  70  X.  C  356 493 

v.  Whitney,  7  or.  386 142 

r.  Whittier,  21  Me.341,38  Am.  Dec. 

272.. - 276 

V.  Wilbourne,  87  N.C.  529 

u.Williams.  1  Rich.  L.  188 203 

r.  Williams,  65  N.  C.  505 245 

v.  Williams,  5  Port.  <Ala.)  130 255 

r.  Williams  77  Mo.  310... .259,  599 

r.  Williams.  52  N.  C.  416 469,  474 

r   Williams,  40  La.  Ann.  168        58     5 

v.  Williams, :.'  Rich.  L.  418 700.  713 

V.  Williams,  47  N.  C.194... 733 

V.  Willingham,  33  La.  Ann.  537 440 

V.  Willis,  63  X.  C.  26.. 440 

0.  Wilson,  31  N.J.  L.  77 

r.  Wilson,  24  Kan.  189 

r.  Wilson,  43  La.  Ann.  840 

r.  Wilson,  1  N.  J.  L.  434, 1  Am.  Dec. 

216  74 

v.  Wilson.  91  Mo.  4in 831 

r.  Wilson,  30  Conn.  5H4 900 

v.  Windsor.  5  Harr.  (Del.)  512 078 

V.  Wingo,  66  Mo.  181,  27  Am.  Rep. 

329 37 

v.  Winner,  17  Kan.  298.... 90a 

v.  Wintzingerode,  9  Or.  153.. 499 

r.  Wisdom.  8  Port.  (Ala.)  511 45,  77 

r.  Wi-i.am.  72  Me.  531.. .71,  347,  851,  8.54 

r.  Witt.  34  Kan.  488 44" 

r.  Wolcott.  21  Conn.  272 522 

r.  Wood,  53  X.  If.  484 204,  255 

v.  Wood.  53  Vt.  560... -  569 

v.  Woodruff.  67  N.  C.  89 

V.  Wright,  4-  La.  Ann.  589.. 34o 

r.  Wright,  70  Iowa  152 356 

v.  Wyatt,  50  -Mo.  3  9 243 

v.  Wyatt,3  N.C.  56 78! 

V.  York,  37  X.  II.  175 493 

v.  Young,  40  N.  H.  206,  88  Am.  Dec. 

212  . 774 

V.  Zeibart,  40  Iowa,  169 4; ; 

r.  Zellers,  7  N.  J.  L.  265 264,  26; 

State  Bank  v.  Hays.  3  Ind.  4ik.i 19o 

v.  Holcomb,  12  N.  J.  L.  219 24 

Starks  r.  People,  5  Denio.  106 

Stauderman,  Be,  3  Abb.  N.  C.  191 

Staup  r.  Com.,  74  Pa.  4o8 

Stearns  c.  Merchants  Bank,  53  Pa.  19! 

Steele  v.  Southwick.  9  Johns.  214. 898 

v.  SUite.  83  Ala. 20. 

V.  Steele.  1  U.  S.  1  Dall.  409,  1  L. 

ed.  199 —    w 

v.  Ward.  30  Hun.  509.. 3L 

Stegall  i'.  Stegall,  2  Brock.  256 

Stein  V.  Bowman.  38  V.  S.  13  Pel.  220,  10 

L.ed.134.. 137 


1'x 


TABLE    OF    CASES. 


Steiner's  Case,  oops.  Atty-t;<  n.  Hi    ..  918 
Steinkeller  r.  NVwton,  !•  Car.  A:  P.  313  ..     97 

Bteinmetz  o.  Wingate,  12  fad.  574 195 

Steinmeyer  o.  People,  95  111.  383 569 

Stephen  o.  State,  li  Ga.225.  - 504 

Stephens,  Be,  L.  R.  9C.  P.  187 153 

Stephens  o.  People,  4  Park.  Crim.  Kep. 

..601,606,  607,  771 

Stephenson  o.  State,  5  Tex.  App.  79  —  103 

Stevens  t>.  MeNamara,  3«  Me.  176...    .22,  23 

r.  siatc  31  J ii.  1.  485.  99  Am.  Dec. 

03.-.,  0.5:;,  ooo,  073,  678 

o.  Stebbina,  4  ill.  25  171, 172 

Stewart  o.  ('(inner.  9  Ala.  803  97 

v.  Huntingdon  Bank,  11  Serg.  &  R. 

267     417 

v.  People.  23  Mich.  63,  9  Am.  Rep. 

319 

v.  S1  He.  58  '■;(.  577 104 

v.  Suite,  1  Ohio  St.  66 569 

v.  State,  15  Ohio  St.  155 616 

13.  Stewart,  3]  X.  J.  Eq.  407 -     863 

o.  Turner,  8  Edw.  Ch.  458 296,  297 

Stiles  o.  Tilford,  10  Wend.  339 245 

Stilling  v.  Thorp,  54  Wis.  528,  41  Am. 

Kep.  60 770 

Stitt   v.  Huidekoper,  84  U.  8.  17  Wall. 

385,21  L.ed.  644 228 

V.  State,  91  Ala.  10. 570 

Stitz  13.  State,  104  fad.  359 432.  440 

Stockton  r.  Demuth.  T  Watts,  39 370 

Stockwell  r.  State.  HH  Ind.  1 249 

Stoffi  r  r.  State.  15  Ohio  St.  487,  86  Am. 

Dee.  470 293 

Stokes  u.  Johnson,  57  N.  Y.  673 84 

v.  People.  53  N.  V.  104. 13  Am.  Rep. 
193  ...  201,  342.  370,  418,422,  428,  581 

r.  State.  24  Miss.  621 ....203,  255 

13.  Slate.  5  Baxt.  619,  30  Am.  Kep.  72  093 

13.  State.  58  Miss.  077 737 

Stolpu  Blair,  68  III.  541 374 

Stoltz  c.  Doering,  112  111.  234 803,8(54 

Stone  t).  Crocker,  24  Pick.  88 50 

13.  Greal  Western  Oil  Co.,  41  111.  85  200 

V.  People,  13  Hun,  265 -  902 

v.  State,  4  Humph.  27 207 

Storck  r.  Buffalo  German  K.  Printing 

Asso.,  22  Alb.  L.  J.  135.... 880 

St- .rev  ,'.  State,  71  Ala.  329 766 

Storrs  13.  State,  3  Mo.  10 217 

St    rj  13.  Saund<  is.  8  Humph. 606 304 

'  13.  State.  99  fad.  413 195 

Stoudenmire  v.  Harper.  :1  Ala.  242 104 

St.  mt  v.  People,  4  Park.  Crim.  Rep.  71  . 

214,  ', 

13.  State.  90  Ind.  1 440 

Stouvenel  v.  Stephens.  2  Daly,  319 23 

Stovall  v.  State, 9  Baxt.  597 862 

Stover  v.  People,  56  N.  V.  315  

Strader  v.  Graham,  51  U.  S.  10  How.  93, 

13  L.  ed.  342 862 

Strang  r.  People,  24  Mich.  6 606,  813,  836 

Strang  r  -.  s,  arle.  1  Esp.  14 .  114 

ier  r.  West  Virginia,  100  U.  S.  303, 

25  L.  ed.  664      203 

Streety  v.  Wood,  15  Barb.  105 890 

Stringer  o.  Frost,  2  L.  K.  A.  014,  no  fad. 

177      259 

:  el  low    p.    State,   20   Miss.   157,   59 

Am.  Dec.  ..•;: 467 

Strong  13.  state,  st;  ind.  208,  44  Am.  Rep. 

292  700 

Btrother   13.  Lucas.  31  U.  S.  6  Pet.  7G3,  8 

L.  ed.  573 53 

Stuart  r.  People,  1  Baxt.  ITS    674 

Stubba  r.  Houston.  33  Ala.  555 25 

Stupp.  Be,  12  Blatchf.501. 944 

Stuyvesant's  <  fcse,  4  City  Hall  Rec.  156.  703 
Sullivan  D.  Hurley,  147  M  ...  8.53 

p.  Kuykendall,  82  Ky.  483,  .50  Am. 

Rep.  901.     83,  484 

13.  People,  1  Park.  Crim.  Rep.  347    19] 


Sullivan  13.  State,  0  Tex.  App.  319  ...354,387 

13.  State,  52  fad.  309 439 

Summons  r.  State.  5  Ohio  St.  325.353,  354,  384 
Sumner  v.  State,  5  Blaekf.  579,  36  Am. 

Dec.  561 440,550 

Sunderland's  Estate,  60  Iowa,  732 863 

Suuderlin  v.  Bradstreet,  46  N.  Y.  191,  7 

Am.  Rep.  322 889 

Surber  13.  State,  99  Ind.  71 198,  620 

Sussex  Peerage,  The,  11  Clark  &  F.  108.  529 

Sutherland  13.  Venard,  32  Ind.  483. 260 

Sutton  c.  Devonport,  27  L.  J.  C.  P.  54  ..  221 

u.  Johnson,  62  111.  209 208 

Swails  t3.  State,  7  Blaekf.  324 171 

Swallcy  13.  People,  110  111.  247 616 

Swamp  Land  Dist.  r.  Gwvnn,  70  Cal.570  35 
Swamscot  Mach.  Co.  13.  Walker,  22  N.H. 

457 370 

Swan  13.  Com.,  104  Pa.  218 73,  210,  901,  904 

p.  State,  4  Humph.  136 444 

Swart  v.  Kimball,  43 Mich.  451 942 

Sweeden  v.  State,  19  Ark.  205. 164 

Sweeney  13.  Ten  Mile  Oil  &  G.  Co.,  130 

Pa.  193 85- 

Sweetser  13.  Lowell.  33  Me.  44*5 116 

Swigar  i>.  People,  109  III.  272.... 771 

Swinnerton  ('.Columbian  Ins.  Co.,  37 N. 

Y.  174,  93  A  m .  Dee.  560. 12 

Swisher  13.  Com.,  26  Graft.  963 530 

Sydleman  13.  Beckwith,  43  Conn.  13 142 

Sydserfl  13.  Re*.,  11  Q.  B.  245. 719 

Sylvester  v.  State,  71  Ala.  17 538 


T. 

Tabart  v.  Tipper,  1  Campb.  350. 895 

Talbot   13.  Seeman,  5  U.  S.  1  Cranch,  1,  2 

L.ed.  15 53 

Talcott  13.  Harris,  93  N.  Y.  567 84 

13.  Wilcox,  9  Conp.  134 240 

Tanner  13.  Hughes,  53  Pa.  289. S3.  94 

Tarble  13.  People,  111  111.120 261 

Tarpley  v.  State.  79  Ala.  271 173 

Tate  13.  Missouri,  K.  &  T.  R.  Co.,  64  Mo. 

149 481 

Taulman  v.  State,  37  Ind.  353.. 281 

Taunton  Bank  13.  Richardson,  5 Pick.  436    43 
Tayloe  13.  Riggs,  26  U.  S.  1  Pet.  591,  7  L. 

rre 42 

Taylor  13.  Baltimore  &  O.  R.  Co.,  Si  W. 

Va.39 258 

73.  Betsford,  13  Joins.  4*7 253 

r.  Carew  Mfp.  Co.,  14U  Mass.  151...  232 

13.  Everett,  2  How.  Pr.  23 2t6 

13.  Greet y,  3  Me.  201 252 

13.  People,  12  Hun,  212 521 

13.  Shemwell.  4  B.  Mon.  575 158 

13.  State,  35  Tex.  97 469,  474 

13.  State,  52  Miss.  84 802 

13.  State,  HI  Ind.  270 815 

Taylor  Will  Case,  10  Abb.  Pr.  N.  S.  300.. 

152   153- 

Teachout  v.  People,  41  N.  Y.7.V. "."." . . . ..'  501 

Teerpenning  r.  Corn  Exch.  Ins.  Co.,  43 

N.  Y.  279 321 

Teese  v.  Huntingdon.  64  U.  S.  23  How. 

2,  16  L.  ed.  479 363 

Temple  13.  Com.,  75  Va.  892 300,  309 

Tenney  v.  Evans,  13  N.  H.  462 206 

.  Mulvaney,  8  Or.  522 245 

Territory  i\  Bannigan,  1  Dak.  432 770- 

13.  Campbell,  9  Mont.  16 578 

13.  (  lavton,  8  Mont.  1 771 

t'.  McClin,  1  Mont.  394 468 

13.  Manton,  8  Mont.  95 771 

t3.  O'Hare,  1  N.  Dak.  30 347 

13.  Roberts,  9  Mont.  12 584 

13.  Yarberrv.  2  N.  M.391 126 

Terry  13.  Ashton,  34  L.  T.  97 '.  147 

v.  State,  13  Ind.  70... 292 

Thacher  13.  Phinney,  7  Allen,  146 454 


TABLE    OF    CASES. 


lxi 


Tharpr.  State,  15  Ala.  757 

Thayer  v.  Thayer,  101  Mass.  Ill,  100  Am. 

Dec.110 

....  74,  824,  845,  850-852.  855,  874, 
Tberasson  17.  People,  82  N.  Y.  238,  240. 197, 
Third  Great  West.  Turnp.    It.  Co.    13. 

Loomis,  32  N.  Y.  127.  139 

320,  330,  331, 

Third  Nat.  Rank  v.  Owen,  101  Mo.  558  .. 

v.  Robinson,  1  Baxt.  484 

Thomas  v.  Com.,  2  Rob.  (Va.)  705 

'    v.  Newton,  2  Car.  &  P.  000 

v.  People,  67  N.  Y.  218 443, 

r.  People,  34  N.  Y.  351 702,  711, 

V.  State,  103  Ind.  419 

Thomason  r.Territoiy.4  N.  M.  150.378, 577, 
Thompson  v.  Blanchard.  4  N.  Y.  303.370, 

v.  Com.,  8  Gratt.  (537 

v.  Com.,  20ftratt.  724 ....495, 

V.  Musser,  1  U.  S.  1  Dall.  458,  1  L. 

ed.222 

v.  Page,  16  Ca).  78 

v.  Rose,  16  Conn.  71,  41  Am.  Dee. 

121 

13.  Shackell,  1  Mood.  &  M.  187 

v.  State,  9  Tex.  App.  301 

v.  State,  11  Tex.  App.  51 

13.  White,  04  111.314 

Thorley  v.  Kerry,  4  Taunt.  355 

Thorn  v.  Moore,  21  Iowa,  2^5. _ 

Thorndike  r.  Boston,  1  Met.  242 

Thorne  v.  Turek,94  N.  Y.  95,  46  Am.  Rep. 

126 ....723, 

Thornton,  Ex  parte,  9  Tex.  635.. 

Thornton  v.  Appleton,  29  Me.  300 

Thrall  13.  Lincoln,  28  Yt.  356  

Thurston  v.  Wright,  77  Mich.  96 

Tibbitts  v.  Sternberg,  66  iiarb.  201 

Tidwell  v.  State,  70  Ala.  33 ..621, 

Tiernev  v.  Spiva,  76  Mo.  279 

Tiffany  u.  Com.,  121  Pa.  165 

Timmerman  v.  Territory,  3  Wash.  Terr. 

445 

Titford  v.  Knott,  2  Johns,  (as.  211 

Titus  v.  State,  49  N.  J.  L.  36 206, 

v.  Sumner,  44  N.  Y.  266 

Todd  v.  Boone  County,  8  Mo.  432 

Tolbert  13.  State,  87  Ala.  27. 

Tome  v.  Parkersburg-  R.  Co.,  39  Md.  36, 

17  Am.  Rep.  540 

Tomlinson's  Case,  4  City  Hall  Rec.  125  _ 
Tompkins  v.  Saltmarsh,   14  Serg.  &  R. 


17.  Starr,  41  Ohio  St.  305 

Toogood  r.  Spynug,  1  Cromp.  M.  ic  R. 

181... 

Toome's  Estate.  54  Cal.  509 

Topolanckr.  State,  40  Tex.  160 

Townsend  v.  Smith,  47  Wis.  623,  02  Am. 

Rep.  793 _ 

v.  State.  2  Blackf.  151 

Tracey  Peerage,  The,  10  Clark  &  F.  154. 

Tracy  v.  McManus,  58  N.  Y.  257 

Travelers  Ins.  Co.  v.  Moslev.  75  U.  S.  8 

Wall.  397.  19  L.  ed.  437 

Travis  v.  Brown.  43  Pa.  9 

Treat  v.  Browning,  4  Conn.  408, 10  Am. 

Dec.  156 
Trevor  r.  Wood,  36 "n.'Y."  307  '.".".""" "".'.'.". 

Trimble  v.  State,  4  Blackf.  435 

Trogdon  13.  Com.,  31  Gratt.  862 

.461,463,700,  708, 

Trotter  v.  Maclean,  L.  R.  13  Ch.  Div.  574 

Trull  v.  True,  33  Me.  367 

Tucker  v.  Ely,  37  Hun.  565 

u.  Henniker,41  N.  H.318 

v.  State,  57  Ga.  503 

Tully,  Be,  20  Fed.  Rep.  816 

Turkr.  State,  7  Ohio,  240 

Turnbull  13.  Bird,  2  Fost.  &  F.  508 

Turner  v.  People,  33  Mich.  378.. 

13.  State,  38  Tex.  169 


20'J 


Ttrner  v.  State,  89  Tenn.547  249 

v.  Yates.  57  U.  S.  16  How.  14, 14  L. 

ed.  824  43    44 

13.  State,  8  Sme'des  &"  M."  104.".".".*."."..  818 

Turpin  13.  State,  55  Md.  462 595 

Tweedy  13.  Briggs,  31  Tex.  74 252 

13.  State.  5  Iowa,  433 573 

Tyler  13.  Todd,  36  Conn.  218 116,  782 

Tyner  v.  State,  5  Humph.  383 169 


U. 

Udderzook  v.  Com.,  76  Pa.  340.150, 153,  405, 549 
Underwood  v.  State,  72  Ala.  220  173 

Union  Bank  i\  Knapp,  3  Pick.  96, 15  Am. 

Dec.181 97 

Union  Pac.  R.  Co.  v.  Botsford,  141  U.  S. 

250,  35  L.  ed.  734 691,  695 

United    States   v.  Amedy,  24   U.  S.  U 

Wheat.  392,  6  L.  ed.  502 56 

13.  Angell,  11  Fed.  Rep.  34 Ii55 

V.  Anthony,  11  Blatchf.200 140,  199 

13.  Babcock.  3  Dill.  571 92,  94 

13.  Bailey,  34  U.  S.  9  Pet.  238,  9  L.  ed. 

113 789 

V.  Battiste,  2  Sumn.  240 141 

13.  Bee  be,  2  Dak.  292 ]3 

v.  Benner,  1  Baldw.  234 51 

v.  Blodgett,  35  Ga.  336 257 

?\  Bridgman,  9  Bias.  221 931 

13.  Britton,  17  Fed.  Rep.  732 79 

r.  Hurler,  1  Cranch,  C.  C.  422... .254,  267 

V.  Caldwell,  8  Blatchf.  131 931 

v.  Cashiel,  1  Hughes,  552 919 

17.  Chamberlain,  12  Blatchf.  390....  782 

13.  Charles,  2  Cranch,  C.  C.  76 204 

13.  Clarke.  2  Cranch,  C.  C.  158 628 

13.  Coffin,  1  Sumn.  394 441 

V.  Cook,  84  U.  S.  17  Wall.  174,  21  L. 

L.ed.  539 3)8 

v.  Cornell,^  Mason.  91 626 

».  Cruikshank,  92   I'.  S.  542.  23  L. 

ed.  588 ...383,403.743,900 

13.  Darton,  6  McLean,  46 168 

13.  Doebler,  1  Baldw.  519... 45 

13.  Dorsey,    3    Star    Route    Trials 

(Gov.  ed.)  3188 332.907 

v.  Drew,  5  Mason,  28 621,  624,  627 

13.  Duff,  19  Blatchf.  9,  10 79,  292 

17.  Durkee,  1  McAll.  196 728 

13.  Durling,  4  Biss.  509 __ 267 

13.  Farriugton,  5  Fed.  Rep.  313 410 

13.  Faulkner,  35  Fed.  Rep.  730. 641 

13.  Ford,  99  U.  S.  594.  25  L.  ed.  399.506,  519 

v.  Foulke,  6  McLean,  349 4.: I 

13.  Freeman,  4  Mason,  510 6(!7 

13.  Gale,  109  U.  S.  65,  27  L.  ed.  857. . . .  255 

13.  Gavlord,  17  Fed.  Rep.  441 79 

13.  Gibert,  2  Sumn.  20 72,  614 

13.  Goggin,  1  Fed.  Rep.  49 403 

13.  Guiteau  (D.  C.)  3  Crim.  L.  Mag. 

358 042 

13.  Hammond.  2  Woods,  C.  C.  197       203 

v.  Hayward,  2  Gall.  485 425 

U.  Hearing.   11  Sawy.  521 792 

13.  Hinz,  35  Fed.  Rep.  272 51] 

13.  Howard,  3  Sumn.  12 174 

13.  Hughes,  34  Fed.  Rep.  732 227 

v.  Jackson,  29  Fed.  Rep.  503 440 

13.  Johns,  4  U.  S.  4  Dall.  412, 1  L.  ed. 

888 56 

V.  Johnson,  26  Fed.  Rep.  682 440 

13.  Jones,  10  Fed.  Rep.  469 L15 

13.  Jones,  3  Wash.  C.  C.  209 90 

13.  King,34  Fed.Rep.302 ...      it; 

13.  Lawrence,  4 Cranch,  C.  ('.  518         257 
13.  Lawrence,  13  Blatchf.  295  931 

13.  Lee,  2  Cent.  Rep.  692,4  Mai 

489 764 

v.  Liddel,  2  Wash.C.C.205 51 

v.  Lloyd,  4  Blatchf.  427 265 


lxii 


TABLE    OF    CASES. 


United  States  i\  Long,  30  Fed.  Hep.  07S  779 
B.  Lynn,  2  Cranch,  C.C.  KN  296,  301 
r.  >]".•<  !onaughy,33  Fed.Kep.168...  782 
r.  McGlue,  l  Curt.C.  C.l 

....  85,623,  624,  628,  636,  663,  677,  678 
0.  Mese  i.  in  (N.  ST.  !  I  .hi.  L.J.121  152 
o.  Mills, 32  U.S.  7  Pet.  142,  8L.  ed. 

637    --         ®fi 

v.  Morris,  I  Curt.C.  C'23      ...     ...  HI 

o.  Moses,  i  Cranch, C.C.  17(>  ..  296,  301 
I).  MuLholland,  50  Fed.  Rep.  U3  ...  136 
r.  Mullaney,  32  Fed.  Rep.  370..  -  34] 
u.  Mulvaney,  i  Park.<  rim.  Kep.164  468 

■v.  Noelke,  i7  Blatchf .  555 157 

v.  Oi  teg   .  i  Wash.C.C.53] 51 

r.  i  >utei  i  ridge,  5  Sawy.  620 442 

o.  Palmer,  2  Cranch,  C.  C.  11 257 

r.  Porter,  3  Day.  283  - 168 

r.  Randall,  Deady,  524  22U 

isctaer,  119  U.  S.  107,  30  L.  ed. 

■125 935-937,940 

v.  Reed,  2  Blatchf.  435 »9 

o.  Reiter  i  La.)  4  Am.  L.  Rear.  N.  S. 

919 

o.  Reyburn,  31 U.  S.  6  Pet.352, 8  L. 

ed.424 42-44 

o.  Reynolds,  l  Utah,  319 352 

r.  Roudenbush,  Baldw.514  ....607,626 
r.  Searcey,  26  Fed.  Rep.  135  ....469,  476 

v.  Shellmire,  1  Baldw.  370 788 

.  pard,  !  Abb.  U.S.  431 413 

v.  Shults,  6  McLean,  121 674 

r.  Slenker,  32  Fed.  Rep.  691 525 

r.  Smith.  2  Bond,  323.... 607 

r.  Spintz,  L8  Fed.  Rep.377  173 

v.  Strother,  3  Cranch,  C.  C'432  296 

c.  Taylor,  3  McCrary,  500 199 

o.  Taylor,  2  Sumn.  586 44:.' 

V.  The  Burdett,34  U.S.9Pet.i 

1  .     I.  273.. 

v.  Turner,  '>■:  V.  S.  11  How.  663,  13 

L.ed.857 53 

V.  Vansickle,2  McLean,  219 303 

V.  Walsh.  22  Fed.  Rep.  644 199 

c.  Warr,  3  X.  Y.  Leg.  Obs.346 933 

v.  Watts,  8  Sawy.  370 935 

o.  Whitaker,6  McLean,  342... 601 

0,  White,  2  Wash.  C.  C.  29 257 

r.  Whittier,  5  Dill.  35 526 

V.  Wiggins,  39   U.  S.  14  Pet.  334.  10 

I.,  ed.  <M 30.  53 

U.Williams,  1  Cliff.  25 465 

c.  Winslow,  3  Sawy.  337 408 

V.  W<    i  :.  39   U.  S.  14  Pet.  430,  10  L. 

ed.  527....   42,  792,  794 

e.  Young,  25  Fed.  Rep.  710.. 042 


v.  Com.,  12  Gratt.  717 570.  573 

Vallandigbam,  Ej  parte,  68  U.S.I  Wall. 

243,  17  L.  ed.  589 909 

Van  Aernam   o.  Van  Aernam,  1  Barb. 

Ch.  177      ...    .. 858 

Van  Buren  o.  State,  24  Mis.-.  512.. 493 

v.  Wells,  19  Wend.203    414 

Vance  v.  can.,  2  Va.  Cas.132.. 674 

Vandervi  Ipen,  Re,  14  Blatchf.  137  ..  ...  'Mi 
■  -.  Gould,  36  \.  V.  639    .41s.  419 

Van  Duzer  v.  Howe,  21  X.  Y.  531  778 

Van  Epps  o.  Van  Epps,  6  Barb.  320 850 

Van  Born  u.  Great  Western  Mfg.  Co.,  37 

Kan.  : 935 

Van  Tassel  v.  State,  59  Wis.  351     .862 

Van  Vechten  i>.  Hopkins,  5  Johns.  211, 

4  Am.  Dec.  339 .  887 

Van  V  •■  intnall,  86  X.  V.  18,  to 

Am.  Rep.  505. 804 

Van  Wyck  o.  Aspenwall,  17  X.  Y.  190  889 
c.  Mcintosh,  14  X.  Y.  439 7^1 


Varick  r.  Jackson,  2  Wend.  166, 19  Am. 

Dec.  571 325 

Varnadoe  v.  State, 67  Ga.  768 105 

Vass  v.  Com.,  3  Leigh,  786,  24  Am.  Dec. 

695 540 

Vaughan  u.  Com.,  17  Gratt.  576 4H5 

r.  State,  83  Ala.  55 410 

Vaux's  Case,  t  Coke,  45 012 

Vickery  r.  McCormack,  117  Ind.  594  ....  259 
Vincent,  Ex  parte,  26  Ala.  145,  02  Am. 

Dec.  714.. 751 

Vincent  i\  State.  3  Heisk.120 290 

Vinton  v.  Peck,  14  Mich.  295 no 

Virginia  a-  T.  K.  Co.  v.  Sayers,  20  Gratt. 

351.. 108 

Vischer  v.  Conant.  4  Cow.  896 6S 

ees,  Re,  32  X.  .1.  L.  144 10,  329 

Vowells  i'.  Com.,  83  Ky.  193 616 

Vowlesu.  Young,  13  Ves.  Jr.  145 864 


W. 

Wade  v.  State,  65  Ga.  756 688- 

Wadge,  R  .  15  led.  Rep.  864,  21  Blatchf. 

300 987,  932,944 

Wagener  i>.  Bill,  19  Barb.  321 632 

Wasrner  v.  People,  4  Abb.  App.  Dec.  509 

030,  638,  07S 

v.  People.  2  Keyes,  6S4 642 

0.  State,  110  Ind.  181 628 

Wahl,  Be.  15  Blatchf.  334. 945 

Wait  r.  .\rxeil.7  Mass. 261.. 240 

Walbridge  v.  Kilpatrick,  9  Hun,  135  ....    85 

r.  State.  13  Xeb.  236 546 

Waldele  r.  New  York  Cent.  &  H.  R.  R. 

Co.,  19  Hun,  69 533 

Wales  v.  Whitney,  114  U.  S.  504,  29  L.  ed. 

277 917 

Walker  v.  Curtis,  110  Mass.  9S 98, 153 

v.  People,  88  N.  Y.  81. 426,  641 

v.  Sauvinet,  92  U.  S.  90,  23  L.  ed. 

678 383 

v.  State,  13  Tex.  App.  618 100 

v.  State,  85  Ala.  7... 575,  576 

r.  State,  102  Ind.  502 602 

f.  Walker,  14  Ga.  242 157,  158,  327 

v.  Winn,  8  Mass.  248 898 

Wall  D.  State,  18  Tex.  682,  70  Am.  Dec. 

302... 405 

Waller  v.  State,  38  Ark.  050 13 

V.  State,  40  Ala.  325 810 

v.  Stewart,  4  Cranch,  C.  C.  532 46 

Walsh  i).  People,  88  N.  Y.  458... 183,  637 

Walfeton  v.  Com.,  16  B.  Mon.  15 387 

Walter  v.  People.  32  X.  Y.  147 .25,  428 

v.  People,  50  Barb.  144. 419,  837 

v.  State,  105  Ind.  589... 610 

Walters  i\  Jordan,  35  N.  C.  361.  _ 198 

v.  People.  6  Park.  Crim.  Rep.  15  ..  120 

r.  State,  39  Ohio,  215 688 

Walton  o.  Slate,  88  Ind.  9 303 

Wandell  v.  Edwards,  25  Hun,  498 606 

Wanzer  r.  Bright.  52  111.  35 931 

Ward  v.  Bonis,  14  Xeb.  114 80 

v.  State,  2  Mo.  120 300 

r.State,  50  Ala.  120.... 496 

Warden  r.  State.  00  Miss.  040 726 

Ware  r.  State,  67  Ga.  349 688 

0.  State,  33  Ark.  507 737 

Waring  v.  Warren,  1  Johns.  340 2*>4 

Wark  v.  Willard,  15  X.  H.  390 900 

Warner  v.  Com..  2  Va.  Cas.  95  -.805,  807,  809 

t'.Lockerby,  31  Minn.  421 363 

t).  State,  114  Ind.  137 641 

Warren  i'.  Com.,  37  Pa.  45 771 

V.  Dickson,  27  111.  115 439 

v.  Gabriel,  51  Ala.  235 370 

Warrick,  E.r  parte,  73  Ala.  57 292 

Wartena  r.  State,  105  Ind.  445 641 

Warwick  0.  White,  76  X.  C.  175 861 

Washburn,  Be,  4  Johns.  Ch.  106 920 


EABLE    OF    CASES. 


lxiii 


Washburn  v.  Cooke,  3  Denio.  110 891 

v.  Cuddihy,  8  Gray,  430 149 

Washington  v.  State,  17  Tex.  App.  197..  283 

o.State,  58  Ala.  355 428 

v.  State.  8  Tex.  App.  377. -  552 

Wason  r.  Walter,  38  L.  .).  Q.  B.  31. 894 

Waterman  v.  State,  &i  111.  ill 772 

Waters  v.  State,  51  Md.  430   202 

Watertown  Rank  &  Loan  Co.  13.  Mix,  51 

N.  Y.561 227 

Watkins  13.  Paine.  57  Ga.  50 80 

c.  Wallace,  19  Mich.  57      454,  455 

Watry   r.  Ferber,  18  Wis.  501,  86  Am. 

Dec.  789 606 

Watson  v.  Com.,  15  Va.  L.  .7.  379 348 

v.  Com.,  95  Pa.  418,  424      515,688 

v.  McLaren,  19Wend.557. 260 

v.  People,  87  N.  Y.  561,  41  Am.  Rep. 

397 702 

v.  Roode,  30  Neb.  264 86 

13.  State.  63  Ind.  548  529 

Watt  13.  People,  1  L.  K.  A.  403,  126  111.  9.  770 

Watts  v.  Green,  30  Ind.  98 260 

Way  v.  Butterworth,  106  Mass.  75 410 

v.  State, 35  Ind.  409. 734 

Wayne  County  Turnp.  Co.  r.  Berry,  5 

Ind.  286 258 

Weaver  v.  Lloyd,  4  Dowl.  &  R.  2:10 898 

Webb  v.  State.  29  Ohio  St.  351.... 374 

v.  State,  9  Tex.  App.  490.. 640 

v.  State,  8  Tex.  App.  310  743 

Webster  v.  Com.,  5  Cush.  295,  52  Am. 

Dee.  711 585 

v.  Jones,  7  Dowl.  &  R.  774 68 

V.  Lee,  5  Mass.  335 325 

v.  People,  92  N.  Y.  422  165,  394 

Weed  13.  Bibbins,  32  Barb.  315  ..   887 

c.  Mutual  Ben.  L.  Ins.  Co.,  70  N.  Y. 

Y.561 

Weeks  13.  State.  79  Ga.  36 764,  770 

Welde  v.  Davidson.  15  Minn.  330 ~0u 

Welch  v.  Sackett,  12  Wis.  257 16 

u.Ware,  32  Mich.  77.. 70 

Welden  v.  State,  10  Tex.  App.  400 515 

Wellar  ».  People.  30  Mich.  20  . .  124,  262.  407 
Wellington,  Re,  16  Pick.  87,26  Am.  Dec. 

631 205 

Wells  13.  State,  4  Tex.  App.  20 173 

Welsh  v.  Barrett,  15  Ma«.  380 97 

Wentworth  r.  Buhler,  3  E.  D.  Smith,  309  331 

13.  Lloyd,  33  L.  J.  Ch.  688 221 

Wentworth  13.  Wentworth,  71  Me.  72....    23 

Wenz  v.  State,  1  Tex.  App.  36   626 

Wern  wag  v.  Chicago  &  A.  R.  Co.,  20  Mo. 

App.  473 104 

Wesley  13.  State,  37  Miss.  327,  75  Am. 

Dee.  62.. 601,  606 

West  v.  Camden,  135  U.  S.  507,  34  L.  ed. 

254 198 

V.  State,  2  Tex.  App.  460,  18  Tex. 

App.  640 594 

v.  State,  1  Wis.  217 854 

West  Cambridge  v.  Lexington,  1  Pick. 

506 ....864 

West  Coast  Lumber  Co.  v.  Newkirk,  80 

Cal.  275 258 

Westmoreland  v.  State,  45  Ga.  225 636 

Weston  v.  Com.,  Ill  Pa.  251 45(5.  597,  764 

13.  United  States,  5  ( 'ranch.  ('.('.  194  725 
Weston  &  P.  R.  Co.  v.  Cox,  32  Mo.  456  260 
Weyman  13.  People,  4  Hun.  511..  700,  711.  713 

Whaley  v.  State,  11  Ga.  123.. 504 

Wharton  v.  State.  73  Ala.  366 37 

Wheat  13.  Cross,  31  Md.  99, 1  Am.  Rep. 

28  92 

i3.  st&^h'iio.^Y.'.Y.". ....'....'.'.  426 

Wheelden  13.  Wilson,  44  Me.  1 455 

Wheeler  v.  Wallace. 53  Mich.  356... 334 

Whidden  v.  Seelye,  40  Me.  247,  63  Am. 

Dec.  661 198 

Whilden  v.  Merchants  &  P.  Nat.  Bank, 

84  Ala.  1,  38  Am.  Rep.  1 . .  .91,  93,  95 


Whitcher  13.  McLaughlin.  115  Mass.  167.    97 
White,  Ke,  9  Sawy.  19,  17  Fed.  Rep.  723.  917 

White  13.  Com..  6  P.inn.  179 405 

13.  Howard,  46  N.  Y.  144... 862 

V.  M urtland,  71  111.250.  22  Am.  Rep. 

100 ...©.16,879' 

13.  Nicholls,  44  U.  S.  3  How.  266,  11 

L.  ed.  591 888.890,891 

13.  State.  72  Ala.  195 71 

13.  State,  52  Miss.216 199 

13.  State,  10  Tex.  App.  381 371 

B.  State,  53  Ind.  595  454,  455 

13.  State,  30 Tex.  App.652.. 576 

v.  Territory,  3  Wash.  Terr.  397.... 

572,575,581,584,  594 

13.  Tucker,  16  Ohio  St.  468 455 

Whiteford  v.  Com.,  6  Rand.  (Va.)  735.191, 448 

Whitehead  13.  Com.,  19  Gratt.  640 2.55 

13.  State,  20  Fla.  841 737 

Whitenack  v.  Whitenack.  36  N.J.  Eq. 

474 850 

Whitfield  13.  Aland,  2  Tar.  &  K.  1015 97 

Whiting  13.  Barney,  30  N.  Y.  330. 316 

c.  Nicholl,  46  111.  230,  92  Am.  Dec. 

23 

Whitlev  13.  State,  38  Ga.  50 536 

Whitman  13.  Morey,  63  X.  H.  448....  372,  373 
Whittaker  v.  Com.,  13  K'v.  L.  Rep.  504..  584 
13.  State,  50  Wis.  518,  36  Am.  Rep. 

815 

Whltten  13.  State.  36  Ind.  211 265 

r.  State,  61  Miss.  717  616 

Whizenant  v.  State,  71  Ala.383 454 

Wick-  13.  Com..  2  Va.  Cas.  387.... 405 

Wiegand.iJe,  14  Blatchf.  370 944 

Wiggin  v.  Coffin,  3  Story,  7.   441 

13.  Scammon,  27  N.  H.  360 70 

Wiargins  13.  Holley,  11  Ind.  2.. 321 

13.  Utah,  93  D.  S.  165,  23  L.  ed.  941.. 

571,  581,  594,  766 

Wilburn  v.  State.  21  Ark.  198   255 

.    >hio  St.  520 943 

Wilder  v.  State.  250hio  St.  555 252 

Wiley  r.  State  3  Coldw.  362... 504 

Wilke  !>.  People,  53  N.  Y.  525  281 

Wilkins   r.  Earle,  44  N.  Y.  172.  3  Am, 

Rep.  655 27 

Wilkinson  13.  Adam,  1  Vis.  &  B.  422 864 

v.  Payne,  4  T.  R.  4(38 18,  19 

Willard  v.  Santa   Barbara  County  Sup. 

Ct.,  82  Cal.  450 268 

13.  State,  27  Tex.  App.  386 466 

Willet  13.  Coin.,  13  Bush,  230. 630 

Willett  13.  People,  27  Hun,  469 85 

William  v.  State,  53  Ga.   Supp.)  85 281 

Williams  )'.  Brickell,  37  Miss.  682,  75  Am. 

Dec.  88 89 

u.  Chadbourne,  6  Cal.  559 382 

13.  Com.,  91  Pa.  493 219,794,  798 

13.  Eldridge,  1  Hill,  249,  255 320 

13.  Fitch,  18  N.  Y.  546.. 418 

D.  Hartford  Ins.  Co  ,  54  Cal.  449...  415 

v.  Hayes,  20  X.  Y.  58 159 

v.  Jarrot,  6  111.  130 324 

v.  Karnes,  4  Humph.  9 898 

13.  People,  101  111.382 37 

v.  People,  24  X.  Y.  405 737 

13.  Reed,  29  N.  J.  L.  385 931 

1).  Sargeant,  46  N.  Y.  482. 335 

13.  State,  67  G a.  260. 13 

13.  State,  £5  Ark.  430 426 

13.  State,  3  Tex.  App.  316 441 

v.  State.  55  Ga.  391 525 

V.  State,  41  Tex.  209 516 

13.  State,  15  Tex.  App.  401 771 

13.  State,  54  Ala.  131,  25  Am.  Rep. 

665.. sill 

v.  Stat.',  44  Ala.  24 .805,  807,  8(l<) 

13.  State,  20  Fla.  777 832 

13.  State,  J4  Ohio,  222,  45  Am.  Dec. 

i  ■ R32 

13.  State,  8  Humph.  585 836 


lxiv 


TABLE   OF   CASES. 


Willis  i'.  Com., 22  Alb.  L.  J.  170 0?8 

o.  Com.,  32  Gratt.  929         757 

r.  People,  ;t-'  N.  Y.  715    .   642,  678 

Willougbby  p.  Dewey,  54  111.  266  7" 

Wills  r.  People,  3  Park.  Crim.  Rep. 473    i31 

Wilson  v.  Abrahams,  1  Bill,207 253 

v.  Beauehamp.  50  Miss.  24 ...    L16 

V.  Boerem,  15  Johns.  287 533 

v.  Bowie,  1  Car.  &  P.  10 46 

r.  Minneapolis  A:  N.  W.  R.  Co.,  31 

Minn,  481 90 

v.  People,  l  Park.  Crim.  Rep.  619      190 
v.  People, 94  111.  327       ..    ..  ."•'.: 

v.  People, 39  N.  V.  159 728 

v.  Pei  pie,  84  Mich.  410 758 

p.  Smith,  5  Yerg.381 249 

r.  South  Park  Comrs.,70  111.  40....  778 

V.  State  iFla.)  17  L.  If.  A.  654 575 

v.  State,  18  Tex.  App.576... 594 

,-.  siat.-,  15  Tex.  77,  23  Am.  Rep. 602 614 

v.  State,  24 » lonn.  57 618 

p.  state.  73  Ala.  527 878 

p.  State,  5-  Ga.  328 879 

d.  Wilson,  Wright  (Ohio!  128...       850 
Wilson's  Trusts,  Be,  L.  R.  1  Em-  Cas.  247  862 

Winchell  p.  Edwards.  57  111.41.... 29 

Windsor,  Ex  parte,  10  Cox.  C.  C.  121...    924 

Winkleyu  Foye,33N.  II.  171 258 

Winnv.  State.  43  Ark.  151...  157 

Winscom  ».  Winscom,  3  Swab.  &  T.  380    68 
Winston  P.  Mosely,  2  Stew.  (Ala.)137...  370 

p.  Wales,  13  Mo.  569 231 

Winter  v.  Butt,  2  Mood.  &  R.  357... 373 

Wither  p.  Buckley,  61  U.S.  20  How.  84, 

15  L.  ed.  816 383 

Withers  v.  Gillespy,  7  Serg.  &  11.14 48 

Witt  p.  State,  6  Coldw.  5       ...  ... 405 

Wittkowsky  p.  Wasson,  71  X   C.  451  231,  233 
Wixson  p.  Pe  iple,  5  Park.  Crim.  Rep. 

119  520 

Woburn   p.  Henshaw,"  "l0i"Mass.'i93,"3 

Am.  It.  p.  333 352 

Wolcott  p.  Yeager,  Hind.  84.. 260 

Wolfe  p.  Hauver,  1  Gill,  84 370 

p.  Missouri  Pac.  R.  Co.,  3  L.  R.  A. 

539.  97  Mo.  473  1*4 

Wolkoff  p.  Tefft,  35  N.  Y.  S.  R.  93  597 

Wolstenholme    p.   Wolstenholme   File 

Mfg.  Co.,  3Lans.  467.   281 

Wolve  t(  ,  16  Ohio,  173.  47  Am. 

Dec.  373 -  15,  -i  7,  309 

Wood  p.  Cooper,  1  Car.  &  K.  64". 57,97 

p.  Cullen,  13  Minn.394 43 

p.  Gale,  10  N.  H.  247,  34  Am.  Dec. 

150    823,855 

v.  People,  59  N.  Y.  117 404,  795 

r.  Stat".  92  Ind.  269 127,  320,  576 

p.  State,  48  Ga.  192,  15  Am.   Rep. 

664 ....879,  880 

r.  United  States.  41  V.  s.  16  Pet. 

342,  H»  L.  ed.  987..     .72,  460,  700,  714 
v.  Wood,  2  Paige,  108,  28  Am.  Dec. 

451  ..     ... 69 

Woodbeck  p.  Keller, 6  Cow.  II1-  ....797,798 
Woodcock  p.  Houldsworth,  16  Mees.  & 

W.    1  94 

Woodford  p.  McClenaban,  9  111.  so  109 

p.  People,  5  Thomp.  &  C.  589  546 

Woodman  p.  Buchanan,  L.  K.  5  Q.  B. 

r.  Dana,  52  Me.  13 115 


Woodrow  v.  O'Connor,  28  Vt.  776 53 

Woolen  p.  Whitacre,  93  Ind.  502 188 

Wooley  p.  United  States,  20  L.  R.  631...  919 

Woolfolk  p.  State,  81  Ga.  551 583 

Wooster  p.  State.  55  Ala.  —I.. 133 

Wooten  p.  Nail,  18  Ga.  609. 46 

Word  p.  Com.,  3  Leigh,  743 45 

Work  v.  Stevens,  76  End.  181 188 

Worley  v.  Moore,  97  Ind.  15 198 

p.  State,  11  Humph.  172 441 

Worrall  p.  Parmelee.l  N.  Y.  519,  49  Am. 

Dec.  350 412,  418,  419 

Wrorth  v.  Chicago,  M.  &  St.  P.  R.  Co.,  51 

Fed.  Rep.  171 583 

Wrav  r.  People,  78  111.  212 165 

Wren  v.  Wield,  L.  R.  4  Q.  B.  213 68 

Wright,  Be,  2  Kay  &  J.  595 862 

Wright  p.  Doe,  7  Ad.  &  El.  313 245,450 

v.  Fansler,  90  Ind.  492 195 

v.  Pasre,  36  Barb.  441 887 

V.  People,  4  Neb.  407  ....26,  635,  636,  639 

v.  Smith,  22  Gratt.  880 448 

v.  State,  69  Ind.  163,  35  Am.  Rep. 

212 193,4*3,437 

v.  State,  7  Tex.  App.  574,  32  Am. 

Rep.  599 525 

V.  State,  5  Ind.  292,  61  Am.  Dec.  90.  617 

p.  Willcox,  9C.  B.  650 335 

v.  Woodgate,  2   Crump.  M.  &  R. 

573 896 

r.  Wright,  6  Tex.  3. 801 

Wroe  v.  State,  20  Ohio  St.  460 536 

Wusing  p.  State,  33  Tex.  651 631 

Wynehamer  v.  People,  13  N.  Y.  378.  .191,  255 


Yanke  v.  State,  51  Wis.  464 349 

Yarbrougb,  Ex  parte,  llou.  S.  651.  28  L. 

ed.  ~'74 944 

Yates  p.  Yates,  76  N.  C.  143... 116 

STeager  p.  Wright,  112  Ind.  230 249 

Yoe  p.  People,  49  111.  410 144,  145,  149 

Yeoman  p.  State.  ~1  Neb.  171 839 

Yeomans  v.  Petty,  40  N.  J.  Eq.  495 116 

Young-  v.  Bank  of  Alexandria,  8  U.  S.  4 

Cranch,  384,  2  L.  ed.  655 56 

v.  Com.,  6  Bush.  312 57:; 

r.  Makepeace,  103  Mass.  50 862 

v.  Rex,  3T.  R.  98 703 

v.  State,  6  Ohio,  4:36 255 

p.  State,  68  Ala.  569 493,  497 

Youngs  v.  Heffner,  36  Ohio  St.  232 23 


Zabriskie  v.  State.  43  N.  J.  L.  640,  39  Am. 

Rep.  610 877,  880 

Zachary  v.  Pace,  9  Ark.  212,  47  Am.  Dec. 

744] 198 

Zeigler  v.  Henry,  77  Mich.  480 86 

Zell  p.  Com.,  94  Pa.  558 159 

Zimmerman,  i?e.  30  Ef-d.  Rep.  176 908 

Zink  v.  People,  77  N.  Y.  114,  33  Am.  Rep. 

589 706,  723,738 

Zuber  v.  Geigar,  2  Yeates,  522 240 


LAW  OF  EVIDENCE 

IN 

CRIMINAL    CASES. 


PART    I. 

DISCUSSION  AND  SUMMARY  OF  GENERAL  RULES. 


CHAPTER   I. 

INTRODUCTION. 


J  1.  Preliminary  Suggestions. 

2.  What  Distinguishes  Criminal  from  Civil  Evidence. 

3.  The  Term  "Evidence"  Defined. 

4.  Definitions  from  the  Celebrated  Field  Code. 

5.  Differences  in  the  Effect  of  Evidence. 

6.  Observations  on  the  Rules  of  Evidence. 

7.  What  is  Embraced  in  the  Term  "  Cr. 

8.  What  is  Criminal  Laic. 

9.  Principals  and  Accessories. 

§  1.  Preliminary  Suggestions. — The  object  of  all  evidence 
tinder  every  scheme  of  jurisprudence  that  has  ever  been  recog- 
nized as  worthy  of  that  name  has  been  the  evolution  of  truth  in 
its  entirety,  subject  only  to  the  limitation  that  it  must  be  relevant 
to  the  issue  tried.  It  follows  as  an  obvious  corollary  that  the  same 
rules  that  are  designed  for  the  development  of  truth  in  a  civil 
.action  apply  with  equal  force  to  a  criminal  case.  A  step  further 
on  will  lead  to  the  assertion  that  all  evidentiary  matter  involved 
under  such  subdivisions  as  are  comprehended  in  judicial  imrice. 
prima  facie  evidence,  best  and  secondary  evidence,  hearsay, 
relevancy,  etc.,  sustain  the  same  relation  in  both  classes  of  cases. 
Indeed,  it  may  be  affirmed  that  criminal  evidence  differs  from 
■civil  evidence  merely  in  matters  of  specialized  application;  and 
the  most  minute  investigation  of  our  theme  will  merely  disclose 
1  1 


2  LAW    OF    EVIDENCE    IN    CKIMINAL   CASES. 

the  fact  that  our  concern  is  with  the  modification,  the  deflections,.; 
the  singularities, — the  aberrations,  if  you  will, — that  experience  in 
criminal  prosecutions  has  engrafted  upon  the  rule  of  civil  evidence. 
It  is  to  the  study  of  these  specialized  applications  that  it  is  the- 
design  and  import  of  this  work  to  assist  in  directing. 

The  foregoing  paragraph,  in  the  reasoning  it  contains,  will  be 
sufficient  justification  in  the  present  work  for  the  somewhat  meagre 
treatment  accorded  to  those  great  sub-headings  of  the  general  law 
of  evidence  which,  by  virtue  of  their  apt  and  well  recognized 
application  to  both  civil  and  criminal  evidence,  have  been  accorded 
extended  treatment  in  the  volumes  already  before  the  profession. 

By  means  of  this  abridgment,  it  is  hoped  to  bring  the  thorough 
treatment  of  the  entire  scheme  of  civil  and  criminal  evidence- 
wit  hin  the  compass  of  three  volumes;  and  where  an  apparent 
deficiency  exists  in  the  treatment,  let  the  critic  investigate  the 
entire  text  before  proceeding  to  condemn.  These  remarks  are 
especially  pertinent  in  view  of  chapter  1,  Civil  Evidence.  In  the 
present  volume  most  if  not  all  the  topics  composing  those  chapters 
were  carefully  amplified  under  similar  headings  in  volume  1,  Civil 
Evidence,  which  will  be  found  to  supplement  the  examination 
here  given  in  many  desirable  ways. 

§  2.  What  Distinguishes  Criminal  from  Civil  Evidence. — 
What  are  the  distinguishing  characteristics  between  criminal  and 
civil  evidence?  Is  the  line  of  cleavage  so  well  defined  as  to  war- 
rant a  separate  treatment,  and  upon  what  lines  should  such  treat- 
ment be  extended?  The  appearance  of  this  work  will  indicate  at. 
least  the  editorial  view,  which  is  accompanied  however  with  the- 
assertion  that  it  is  the  weight  of  evidence  that  creates  and  main- 
tain- the  fundamental  distinction. 

This  distinction  is  further  emphasized  by  the  fact  that  criminal 
prosecutions  involve  different  applications  of  the  law  of  evidence 
from  those  in  vogue  in  civil  cases,  where  the  parties  approach  the- 
contention  indicated  by  the  pleadings  upon  terms  of  proximate 
equality  with  perhaps  a  slight  presumption  in  favor  of  the  plain- 
tiff, who  having  committed  himself  to  specific  allegations  of  injury 
tritably  presumed  to  be  in  a  situation  to  prove  his  case.  In 
criminal  prosecutions,  however,  there  is  an  antipodal  relation 
between  the  primacy  accorded  to  the  state,  with  all  the  parapher- 
nalia of  the  law  ro  maintain  its  dignity  and  sustain  its  cause,  and 
the  alleged  offender,  often  friendless  and  in  penury;  and  always- 


INTRODUCTION.  6 

laboring  under  the  derogatory  imputations  that  a  criminal  indict- 
ment is  presumed  to  transmit.  In  this  immediate  connection,  it 
is  appropriate  to  outline  the  last  and  greatest  distinction  that  char- 
acterizes civil  and  criminal  evidence.  The  law,  in  its  tender  solici- 
tude for  the  life  and  liberty  of  the  citizen,  seeks  to  equalize  the 
inequalities  between  the  state  and  the  accused,  by  conjuring 
up  as  a  staunch  ally  of  the  accused,  one  who  accompanies  him 
from  the  moment  of  apprehension  to  the  moment  of  conviction, 
one  who  is  doubly  armed  with  those  mighty  bulwarks  of  the  crim- 
inal law — -presumption  of  innocence  and  reasonable  doubt. 

To  overcome  this  presumption,  and  to  dispel  this  doubt,  the 
prosecution  must  direct  its  energy.  It  must  prove  every  averment 
of  its  indictment.  It  must  establish  its  case  by  convincing  testi- 
mony. It  must  assume  the  integrity  of  the  accused ;  and  substan- 
tiate its  position  without  the  aid  of  his  testimony.  Through  all 
the  mutations  of  the  trial,  the  burden  of  proof  is  with  the  state. 

These  peculiar  characteristics  of  criminal  evidence  generate  in 
their  turn  a  hoard  of  peculiarities  that  necessitate  constant  atten- 
tion in  a  criminal  trial;  and  the  difficulty  is,  that  they  assume  a 
varying  importance  in  proportion  to  the  magnitude  and  heinous, 
ness  of  the  offense.  However,  to  indicate  all  of  these  differences, 
is  the  very  object  of  this  book ;  and  we  refrain  from  further  par- 
ticularization  in  this  introductory  chapter. 

§  3.  The  Term  "  Evidence  "  Defined.— Evidence  is  the  means 
employed  for  the  purpose  of  proving  an  unknown  or  disputed 
fact,  and  is  either  judicial  or  extra-judicial.  Judicial  evidence  is 
that  which  is  used  on  trials  or  inquiries  before  courts,  judges,  com- 
missioners, referees,  etc.,  while  extra-judicial  evidence  is  that  which 
is  used  to  satisfy  private  persons  as  to  facts  requiring  proof. 
Eapalje  &  Lawrence,  Law  Diet.,  title  Evidence.  Every  determi- 
nation of  the  judgment,  whatever  may  be  its  subject,  is  the  result 
of  evidence. 

Proof  and  evidence  are  constantly  used  in  practice  as  synony- 
mous, and  are  sometimes  so  treated  in  the  books.  Properly  speak- 
ing, however,  evidence  is  only  the  medium  of  proof;  proof  is  the 
effect  of  evidence.     Burrill,  Law.  Diet.,  title  Proof. 

The  term  "proof"  is  often  confounded  with  that  of  "evidence,'1 
and  applied  to  denote  the  medium  of  proof,  whereas  in  strictness 
it  marks  merely  the  effect  of  evidence.  When  the  result  of  evi- 
dence is  undoubting  assent  to  the  certainty  of  the  event  or  propo- 


4  LAW    OF    EVIDENCE    IN    CRIMINAL    CASES. 

sitibu  which  is  the  subject-matter  of  inquiry,  such  event  or  proposi- 
tion is  said  to  be  proved;  and,  according  to  the  nature  of  the 
evidence  on  which  such  conclusion  is  grounded,  it  is  either  known 
or  believed  to  he  true.  Our  judgments,  then,  are  the  consequence 
of  proof;  and  proof  is  that  quantity  of  appropriate  evidence  which 
pr<  "duces  assurance  and  certainty ;  evidence,  therefore,  differs  from 
proof,  as  cause  from  effect.     Wills,  Circ.  Ev.  p.  2. 

"  The  term  '  evidence '  is  to  be  carefully  distinguished  from  its 
synonyms,  'proof  and  'testimony.'  'Proof  is  the  logically  suffi- 
cient reason  for  assenting  to  the  truth  of  a  proposition  advanced. 
In  its  judicial  sense  it  is  a  term  of  wide  import,  and  comprehends 
everything  that  may  be  adduced  at  a  trial,  within  the  legal  rules, 
for  the  purpose  of  producing  conviction  in  the  mind  of  judge  or 
jury,  aside  from  mere  argument;  that  is,  everything  that  has  a 
probative  force  intrinsically,  and  not  merely  as  a  deduction  from 
or  combination  of,  original  probative  facts.  But  '  evidence '  is  a 
narrower  term,  and  includes  only  such  kinds  of  proof  as  may  be 
legally  presented  at  a  trial,  by  the  act  of  the  parties,  and  through 
the  aid  of  such  concrete  facts  as  witnesses,  records,  or  other  docu- 
ments. Thus,  to  urge  a  presumption  of  law  in  support  of  one's 
case  is  adducing  proof,  but  it  is  not  offering  evidence.  '  Testi- 
mony,' again,  is  a  still  more  restricted  term.  It  properly  means 
only  such  evidence  as  is  delivered  by  a  witness  on  the  trial  of  a 
cause,  either  orally  or  in  the  form  of  affidavits  or  depositions. 
Thus,  an  ancient  deed,  when  offered  under  proper  circumstances, 
is  evidence,  but  it  could  not  strictly  be  called  '  testimony.'  *  I3elief ' 
is  a  subjective  condition  resulting  from  proof.  It  is  a  conviotion 
of  the  truth  of  a  proposition,  existing  in  the  mind,  and  induced  by 
persua.-i(  »n,  proof,  or  argument  addressed  to  the  judgment."  Black, 
Law.  Diet,  title  Evidence, 

Evidence  is  "any  matter  of  fact,  the  effect,  tendency  or  design 
of  which  is  to  produce  in  the  mind  a  persuasion,  affirmative  or 
disaffirmative,  of  the  existence  of  some  other  matter  of  fact.  The 
fact  sought  to  be  proved  is  termed  the  'principal  fact;'  the  fact 
which  tends  to  establish  it,  'the  evidentiary  fact.'  "  1  Bentham, 
Jud.  Ev.  17.  L8.  It  is  that  which  brings  or  contributes  to  bring 
the  mind  to  a  just  conviction  of  the  truth  or  falsity  of  the  fact 
asserted  or  denied.     1  Livingston's  Works,  (ed.  18T3)  419. 

The  word  signifies  in  its  original  sense,  the  state  of  being  evi- 
dent, i.  e.  plain,  apparent  or  notorious.     But  by  an  almost  peculiar 


/ 


INTRODUCTION.  O 

inflection  of  our  language,  it  is  applied  to  that  which  tends  to 
render  evident  or  to  generate  proof.  Best,  Ev.  §  11.  This  is  the 
sense  in  which  it  is  commonly  used  in  modern  law  books,  and  will 
be  used  throughout  this  work. 

Evidence,  to  be  believed,  must  not  only  proceed  from  the  mouth 
of  a  credible  witness,  but  it  must  be  credible  in  itself — such  as  the 
common  experience  and  observation  of  mankind  can  approve  as 
probable  under  the  circumstances.  We  have  no  test  of  the  truth 
of  human  testimony,  except  its  conformity  to  our  knowledge, 
observation  and  experience.  Whatever  is  repugnant  to  these 
belongs  to  the  miraculous,  and  is  outside  of  judicial  cognizance. 
Evidence  is  generally  considered  improbable  when  it  imputes  to 
the  parties  to  a  transaction,  occurring  in  the  ordinary  course  of 
business,  conduct  inconsistent  with  the  principles  by  which  men, 
similarly  situated,  are  usually  governed.  Daggers  v.  Van  Dyck 
37  K  J.  Eq.  130. 

§  4.  Definitions  from  the  Celebrated  "  Field  Code." — After 
''  an  extended  survey  of  the  entire  field  of  definition  and  after  a 
critical  review  of  every  treatise  bearing  upon  the  topic,  the  con- 
viction remains  that  the  celebrated  "  Field  Code  "  of  California 
contains  by  far  the  most  satisfactory  statement  of  what  evidence 
is,  in  juridical  contemplation,  of  any  to  be  met  with  in  the  entire 
range  of  legal  literature.  In  proof  of  this  the  text  of  §§  1823-1839, 
inclusive,  is  herewith  furnished.  The  rare  aptitude  of  its  distin- 
guished author  for  condensed  and  perspicuous  expression  here 
receives  a  most  vivid  illustration. 

§  1823.  Judicial  evidence  is  the  means,  sanctioned  by  law,  of 
ascertaining  in  a  judicial  proceeding  the  truth  respecting  a  ques- 
tion of  fact. 

§  1824.  Proof  is  the  effect  of  evidence,  the  establishment  of  a 

fact  by  evidence. 

§  1825.  The  law  of  evidence  is  a  collection  of  general  rules  estab- 
lished by  law : 

1.  For  declaring  what  is  to  be  taken  as  true  without  proof ; 

2.  For  declaring  the  presumptions  of  law,  both  those  which  are 
disputable  and  those  which  are  conclusive;  and, 

3.  For  the  production  of  legal  evidence ; 

4.  For  the  exclusion  of  whatever  is  not  legal  ; 

5.  For  determining  in  certain  cases  the  value  and  effect  of 
evidence. 


t       a  <li 


LAW    OF    EVIDENCE    IN    CRIMINAL    CASES. 

1  ^26.  The  law  does  not  require  demonstration  ;  that  is,  such 
degree  of  proof  as,  excluding  possibility  of  error,  produces  abso- 
lu1&  certainty,  because  such  proof  is  rarely  possible.  Moral  cer- 
tainty only  is  required,  or  that  degree  of  proof  which  produces 
conviction  in  an  unprejudiced  mind. 

§  1827.  There  are  four  kinds  of  evidence: 

1.  The  knowledge  of  the  court ; 

2.  The  testimony  of  witnesses  ; 

3.  Writings ; 

4.  Other  material  objects  presented  to  the  senses. 
§  182S.  There  are  several  degrees  of  evidence : 

1.  Primary  and  secondary  ; 

2.  Direct  and  indirect ; 

3.  Prima  facie,  partial,  satisfactory,  indispensable  and  conclusive. 
§  1S29.  Primary  evidence  is  that  kind  of  evidence  which,  under 

every  possible  circumstance,  affords  the  greatest  certainty  of  the 
fact  in  question.  Thus,  a  written  instrument  is  itself  the  best  pos- 
sible evidence  of  its  existence  and  contents. 

§  1830.  Secondary  evidence  is  that  which  is  inferior  to  primary. 
Thus  a  copy  of  an  instrument,  or  oral  evidence  of  its  contents,  is 
secondary  evidence  of  the  instrument  and  contents. 

§  1831.  Direct  evidence  is  that  which  proves  the  fact  in  dispute 
directly,  without  an  inference  or  presumption,  and  which  in  itself, 
if  true,  conclusively  establishes  that  fact.  For  example :  if  the 
fact  in  dispute  be  an  agreement,  the  evidence  of  a  witness  who 
was  present  and  witnessed  the  making  of  it,  is  direct. 
-  §  1832.  Indirect  evidence  is  that  which  tends  to  establish  the 
fact  in  dispute  by  proving  another,  and  which,  though  true,  does 
not  of  itself  conclusively  establish  that  fact,  but  which  affords  an 
inference  or  presumption  of  its  existence.  For  example:  a  wit- 
ness proves  an  admission  of  the  party  of  the  fact  in  dispute.  This 
proves  a  fact,  from  which  the  fact  in  dispute  is  inferred. 

§  1S33.  Prima  facie  evidence  is  that  which  suffices  for  the  proof 
of  a  particular  fact,  until  contradicted  and  overcome  by  other  evi- 
dence. For  example  :  the  certificate  of  a  recording  officer  is  prima 
facie  evidence  of  a  record,  but  it  may  afterward  be  rejected  upon 
proof  that  there  is  no  such  record. 

§  1  834.  Partial  evidence  is  that  which  goes  to  establish  a  detached 
fact,  in  a  series  tending  to  the  fact  in  dispute.  It  may  be  received 
subject  to  be  rejected  as  incompetent,  unless  connected  with  the 


INTRODUCTION.  7 

fact  in  dispute  by  proof  of  other  facts.  For  example :  on  an  issue 
of  title  to  real  property,  evidence  of  the  continued  possession  of  a 
remote  occupant  is  partial,  for  it  is  of  a  detached  fact,  which  may 
or  may  not  be  afterward  connected  with  the  fact  in  dispute. 

§  1835.  That  evidence  is  deemed  satisfactory  which  ordinarily 
produces  moral  certainty  or  conviction  in  an  unprejudiced  mind. 
•Such  evidence  alone  will  justify  a  verdict,  Evidence  less  than 
this  is  denominated  slight  evidence. 

§  1836.  Indispensable  evidence  is  that  without  which  a  particu- 
lar fact  cannot  be  proved. 

§  1837.  Conclusive  or  unanswerable  evidence  is  that  which  the 
law  does  not  permit  to  be  contradicted.  For  example  :  the  record 
of  a  court  of  competent  jurisdiction  cannot  be  contradicted  by  the 
parties  to  it. 

§  1838.  Cumulative  evidence  is  additional  evidence  of  the  same 
•character  to  the  same  point. 

§  1839.  Corroborative  evidence  is  additional  evidence  of  a  dif- 
ferent character,  to  the  same  point. 

§  5.  Differences  iii  the  Effect  of  Evidence.— There  is  a  strong 
and  marked  difference  as  to  the  effect  of  evidence  in  civil  and 
■criminal  proceedings.  In  the  former,  a  mere  preponderance  of 
probability,  due  regard  being  had  to  the  burden  of  proof,  is  a  suffi- 
cient basis  of  decision ;  but  in  the  latter,  especially  when  the  offense 
charged  amounts  to  treason  or  felony,  a  much  higher  degree  of 
assurance  is  required.  The  serious  consequences  of  an  erroneous 
conviction  or  acquittal  have  induced  the  courts  of  every  wise  and 
civilized  nation  to  lay  down  the  principle,  though  often  lost  sight 
of  in  practice,  that  the  persuasion  of  guilt  ought  to  amount  to  a 
moral  certainty;  or,  as  an  eminent  judge  expressed  it,  "such  a 
moral  certainty  as  convinces  the  minds  of  the  tribunal,  as  reason- 
able men,  beyond  all  reasonable  doubt."  The  expression  "  moral 
certainty"  is  here  used  in  contradistinction  to  physical  certainty, 
or  certainty  properly  so  called ;  for  the  physical  possibility  of  the 
innocence  of  any  accused  person  can  never  be  excluded.  Best, 
Ev.  §  95. 

§  6.  Observations  on  the  Rules  of  Evidence.— The  rules  of 
•evidence,  as  founded  on  reason  and  crystalized  in  the  judgments 
of  the  courts,  constitute  the  best  means  for  discovering  truth,  and 
.are  an  integral  part  of  our  leg;)  I  system,  essential  alike  for  private 
and  social  security.     Nevertheless,  language  of  most  dangerous 


8  LAW    OF    EVIDENCE    IN    CRIMINAL    CASES. 

tendency  in  regard  to  them  has  occasionally  fallen  from  learned 
judges,  which  implies  that  they  may  he  modified,  according  to  the 
enormity  of  the  crime,  or  the  weightiness  of  the  consequences 
which  attach  to  conviction.  Lord  Finch,  afterwards  Lord  Chan- 
cellor Nottingham,  on  the  trial  of  Lord  Cornwallis,  said,  "The 
fouler  the  crime  is.  the  clearer  and  plainer  ought  the  proof  to  be." 
7  Sr.  Tr.  149;  and  see  Rex  v.  Crossley,  26  St.  Tr.  218.  "The 
more  flagrant  the  crime  is,"  said  Mr.  Baron  Legge,  ".the  more 
clearlv  and  satisfactorily  you  will  expect  that  it  will  be  made  out 
to  you."  Rex  v.  Blandy,  18  St.  Tr.  1186.  Mr.  Justice  Holroyd 
is  represented  to  have  said  that  "the  greater  the  crime,  the  stronger 
is  the  proof  required  for  conviction."  Rex  v.  Hobson,  1  Lewin, 
C.  C.  261. 

It  may  be  proper  here  to  premise  that  the  rules  of  evidence  in 
criminal  cases  are,  in  most  respects,  the  same  as  in  civil  cases. 
The  chief  distinction  which  prevails  will  be  found  to  originate  in 
that  caution  which  is  always  observed  when  life  or  liberty  is  in 
question,  and  in  those  benign  presumptions  with  which  the  law 
meets  every  accusation  involving  moral  turpitude.  Barbour,  Crim. 
Law,  p.  351,  and  see  K  Y.  Laws,  1892,  chap.  279,  §  392. 

An  early  English  case  which  is  still  cited  with  approval  affirms 
that,  "there  is  no  distinction  as  regards  the  rules  of  evidence 
between  criminal  and  civil  cases.  What  may  be  received  in  the 
one  ease  may  be  received  in  the  other;  and  what  is  rejected  in  the 
one  ought  to  be  rejected  in  the  other.  A  fact  must  be  established 
by  the  same  evidence,  whether  it  is  to  be  followed  by  a  criminal 
or  civil  consequence."  Rex  v.  Watson,  2  Stark.  116 ;  Lord  Mel- 
's Case,  29  How.  St.  Tr.  763. 

These  positions  are  distinctly  sustained  by  Chief  Justice  Russell, 
who  holds,  in  his  well  known  work  on  "  Crimes,"  that  there  is  no- 
difference  between  civil  and  criminal  cases,  with  reference  to  the 
modes  of  proof  by  direct  or  circumstantial  evidence,  except  that 
in  the  former,  where  civil  rights  are  ascertained,  a  less  degree  of 
probability  may  he  safely  adopted  as  a  ground  of  judgment,  than 
in  the  latter,  which  affect  life  and  liberty. 

.Mr.  Bishop  is  found  in  entire  accord  with  the  preceding  view. 
In  section  1 046  of  his  '  Criminal  Procedure,'  he  very  aptly  observes : 
"The  object  of  all  evidence  being  the  establishment  of  truth,  the 
rules  for  its  admission  and  effect  must  be,  and  are,  the  same  in 
criminal  causes  as  in  civil.     But  this  abstract  doctrine,  sometimes- 


INTRODUCTION.  9 

thus  broadly  laid  down  by  the  courts,  is  practically,  in  a  degreeT 
modified  by  the  fact  that  in  criminal  causes,  the  end*  whereof  i& 
disgrace  and  punishment,  the  law  has  its  presumption  of  innocencey 
differing  from  any  known  in  civil  jurisprudence ;  its  consequent 
special  rules  for  overcoming  this  presumption ;  and  some  others- 
which  seem  peculiar,  because  applicable  only  in  issues  which  never 
arise  in  the  other  department." 

§  7.  What  is  Embraced  in  the  Term  "  Crime." — While  we 
distinctly  repudiate  any  intention  of  blending  our  subject  with 
that  of  criminal  law,  we  should  arrive  at  some  accurate  definitions. 
If  we  are  to  produce  evidence  of  a  crime  or  of  criminal  intent,  it 
is  obviously  of  considerable  importance  to  first  establish  what  crime 
is;  or,  more  accurately,  what  the  criminal  law  embraces.  Sir 
William  Blackstone  says: 

"  Crime  is  an  act  committed  or  omitted  in  violation  of  a  public 
law  either  forbidding  or  commanding  it."  4  Bl.  Com.  5.  It  is  a 
wrong  of  which  the  law  takes  cognizance  as  injurious  to  the  public,, 
and  punishes  in  what  is  called  a  criminal  proceeding  prosecuted  by 
the  state  in  its  own  name  or  in  the  name  of  the  people  or  the  sov- 
ereign.    Re  Bergin,  31  Wis.  386.     See  1  Bishop,  Crim.  Law.  §  32. 

The  New  York  Penal  Code  contains  by  far  the  most  compre- 
hensive definition.     According  to  sections  3,  et  seq. 

"  A  crime  is  an  act  or  omission  forbidden  by  law,  and  punish- 
able upon  conviction  by 

"1.  Death;  or 

"  2.  Imprisonment ;  or 

"  3.  Fine ;  or 

"  4.  Removal  from  office ;  or 

"  5.  Disqualification  to  hold  any  office  of  trust,  honor,  or  profit- 
under  the  state ;  or 

"  6.  Other  penal  discipline. 

"  A  crime  is  either  (1)  a  felony;  or  (2)  a  misdemeanor."  New 
York  Penal  Code,  §  4. 

"A  felony  is  a  crime  which  is  or  may  be  punishable  by  either 
(1)  death;  or  (2)  imprisonment  in  a  state  prison."  New  York 
Penal  Code,  §  5. 

"The  intent  of  the  legislature  to  elevate  an  act  to  the  import- 
ance of  a  crime  cannot  be  imputed  by  loose  influences  and  doubt- 
ful implications,  but  must  be  made  to  appear  with  reasonable 
certainty.     We  may  guess  that  the  legislature  intended  to  make 


10  LAW    OF    EVIDENCE    IN    CRIMINAL   CASES. 

fill  prohibited  acts  criminal  offenses,  but  it  is  impossible  to  so  affirm 
with  any  degree  of  certainty,  and  the  fact  that  they  did  not  so 
declare  is  indicative  that  they  did  not  so  intend."  People  v.  His- 
lop,  77  K  Y.  335. 

The  word  "  crime,"  in  its  more  extended  sense,  comprehends 
-every  violation  of  public  law;  in  a  limited  sense,  it  embraces 
offenses  of  a  serious  or  atrocious  character.  Callan  v.  Wilson,  127 
U.  S.  510,  32  L.  ed.  223. 

§  8.  What  is  Criminal  Law? — The  definition  of  crime  as  here 
outlined  must  not  be  regarded  as  trenching  upon  that  of  criminal 
law,  which  has  been  defined  as  "that  branch  of  jurisprudence 
which  treats  of  crimes  and  offenses.  From  the  very  nature  of  the 
social  compact  on  which  all  municipal  law  is  founded,  and  in  con- 
sequence of  which  every  man,  when  he  enters  into  society,  gives 
up  part  of  his  natural  liberty,  result  those  laws  which  in  certain 
cases  authorize  the  infliction  of  penalties,  the  privation  of  liberty, 
and  even  the  destruction  of  life,  with  a  view  to  the  future  pre- 
vention of  crime  and  to  insuring  the  safety  and  well-being  of  the 
public.  Solus  populi  sap  re  ma  lex"  Bouvier,  Law  Diet.,  title 
Criminal  Law. 

"Crimes  and  offenses  are  classed  under  the  head  of  public 
wrongs,  and  are  distinguished  from  private  wrongs  in  this :  that 
private  wrongs,  or  civil  injuries  are  an  infringement  or  depriva- 
tion of  the  civil  rights  which  belong  to  individuals,  considered 
merely  as  individuals  ;  whilst  public  wrongs,  or  crimes  and  mis- 
demeanors, are  a  breach  and  violation  of  the  public  rights  and 
duties  due  to  the  whole  community,  considered  as  a  community 
in  its  social,  aggregate  capacity."     4  Bl.  Com.  5. 

Crime  and  misdemeanor  are  synonymous  terms;  though,  in 
common  usage,  "crimes"  denotes  such  offenses  as  are  of  a  deeper 
and  more  atrocious  dye ;  while  smaller  faults,  and  omissions  of  less 
consequence,  are  comprised  under  the  gentler  name  of  "  misde- 
meanors."' 1  Bl.  Com.  5  ;  3  Bl.  Com.  2.  In  short,  the  term  "crime" 
embraces  any  and  every  indictable  offense.  See  People  v.  New 
York  Police  Gomrs.  39  Hun,  510;  State  v.  Bishop,  7  Conn.  185; 
Alton  v.  Rope,  G8  111.  108;  Re  Yoorhees,  32  K  J.  L.  141;  Re 
Clark,  0  Wend.  212;  O'Shea  v.  Twohig,  9  Tex.  340;  Kentucky 
v.  I*.  unison,  65  U.  S.  24  How.  102,  16  L.  ed.  727;  Re  Howard, 
26  Yt.  20S;  State  v.  Peterson,  41  Art.  511;  2  K  Y.  Kev.  Stat. 
70,  §  22.  Yet  it  is  not  synonymous  with  "felony."  Lehigh 
County  v.  Schock,  IV.)  Pa.  379. 


INTRODUCTION.  11 

High  crimes  and  misdemeanors  are  such  immoral  and  unlawful 
acts  as  are  nearly  allied  and  equal  in  guilt  to  felony,  yet,  owing  to 
some  technical  circumstance,  do  not  fall  within  the  definition  of 
felony.  State  v.  Knapp,  6  Conn.  417;  1  Russell,  Crimes,  61. 
The  meaning  of  the  phrase  "  high  crimes  and  misdemeanors," 
underwent  much  discussion  in  the  case  of  President  Johnson,  who 
was  tried  on  articles  of  impeachment  in  1863,  but  the  result  of  the 
-case  was  not  such  that  any  authoritative  rule  can  be  derived  from  it. 

The  criminal  law  has,  therefore,  this  object  in  view  :  to  secure 
to  the  public  the  benefits  of  a  social  compact,  by  preventing  or 
punishing  every  breach  and  violation  of  those  laws  which  have 
been  established  for  the  government  and  tranquility  of  the  whole. 
Some  of  the  leading  principles  of  the  American  system  of  the 
criminal  law  are  :  First.  That  every  man  is  presumed  to  be  inno- 
•cent  till  the  contrary  is  shown,  and,  if  there  is  a  reasonable  doubt 
of  his  guilt,  he  is  entitled  to  the  benefit  of  the  doubt.  Second. 
That  no  person  can  be  brought  to  trial  except  in  the  regular  mode 
prescribed.  Third.  That  the  accused  is  entitled  to  trial  by  an 
impartial  jury  of  his  peers.  Fourth.  That  the  question  of  the 
guilt  of  the  accused  is  to  be  determined  without  reference  to  his 
general  character.  Fifth.  That  the  accused  cannot  be  required 
to  criminate  himself.  Sixth.  That  the  accused  cannot  twice  be 
put  in  jeopardy  for  the  same  offense.  Seventh.  That  the  accused 
cannot  be  punished  for  an  act  which  was  not  an  offense  at  the  time 
of  its  commission.     Haines,  Justices  of  the  Peace,  part  2,  p.  815. 

§  9.  Principals  and  Accessories. — In  the  codes  and  statutes 
generally  the  parties  to  crimes  are  classified  as  principals  and 
accessories,  and  all  persons  concerned  in  the  commission  of  a  crime, 
whether  it  be  felony  or  misdemeanor,  and  whether  they  directly 
commit  the  act  constituting  the  offence,  or  aid  and  abet  in  its  com- 
mission, or,  not  being  present,  have  advised  and  encouraged  its 
commission,  and  all  persons  counseling,  advising,  or  encouraging 
children  under  the  age  of  fourteen  years,  lunatics  or  idiots,  to 
commit  any  crime,  or  who,  by  fraud,  contrivance,  or  force,  occa- 
sion the  drunkenness  of  another  for  the  purpose  of  causing  him  to 
commit  any  crime,  or  who,  by  threats,  menaces,  command,  or 
coercion,  compel  another  to  commit  any  crime,  are  principals  in 
any  crime  so  committed.  All  persons  who,  after  full  knowledge 
that  a  felony  has  been  committed,  conceal  it  from  the  magistrate, 
or  harbor  and  protect  the  person  charged  with  or  convicted  there- 
of, are  accessories. 


CHAPTER  II. 

JUDICIAL  NOTICE. 

§  10.  Present  Aft  i  hide  of  Judicial  Authority. 

11.  Judicial  Notice  Excludes  the  Necessity  of  Proof. 

12.  Late  Statute  Relating  to  the  Subject. 

§  1.  Present  Attitude  of  Judicial  Authority. — The  pres- 
ent attitude  of  judicial  authority  upon  this  important  topic 
of  the  law  of  evidence  is  indicated  in  a  sententious  utter- 
ance of  the  New  York  Court  of  Appeals  in  an  opinion  by 
Chief  Judge  Hunt.  It  is  an  epitome  of  the  legal  sentiment  of 
this  country,  and  through  its  logical  inferences  and  implications 
it  can  be  made  to  embrace  every  rule  pertinent  to  this  discussion. 
After  an  interesting  resume  of  the  authorities  implicated  with 
this  question,  he  summarizes  the  conclusion  in  the  following 
terms:  "In  fine,  courts  will  generally  take  notice  of  what- 
ever ought  to  be  generally  known  within  the  limits  of  their 
jurisdiction,  and  where  the  memory  of  the  judge  is  at  fault,  he- 
may  resort  to  such  documents  of  reference  as  may  be  at  hand  and 
he  may  deem  worthy  of  confidence."  Sioinnerton  v.  Columbian 
Ins.  Co.  37  N.  Y.  174,  93  Am.  Dec.  560. 

A  court  will  notice,  judicially,  a  thing  in  the  common  knowl- 
edge and  use  of  the  people  throughout  the  country,  as :  the  gen- 
eral cust<  mi>  and  usages  of  merchants;  the  seals  of  notaries;  things- 
which  must  happen  according  to  the  laws  of  nature;  the  coinci- 
dence of  the  days  of  the  week  with  those  of  the  month;  the 
meaning  of  the  words  in  the  vernacular  language;  the  customary 
abbreviations  of  Christian  names;  the  accession  of  the  chief 
magistrate  to  office,  his  leaving  it,  and  the  appointment  of  mem- 
bers of  his  cabinet;  the  election  and  resignation  of  senators;  the 
appointment  of  marshals  and  sheriffs,  but  not  of  their  deputies; 
of  the  ports  and  waters  where  the  tide  ebbs  and  flows;  of  the 
boundaries  of  the  states,  and  of  judicial  and  collection  districts. 
Brown  v.  Piper,  91  U.  S.  42,  23  L.  ed.  201. 

Statutes  prescribing  the  boundaries  of  the  territory,  and  its- 
division  into  judicial  districts,  are  public  acts,  which  the  courts 
are  bound  to  know,  and  of  which  they  will  take  judicial  notice. 

12 


JUDICIAL   NOTICE.  13 

The  limits  of  such  divisions  are  therefore  of  judicial  cognizance; 
and  so  with  regard  to  leading  places  and  the  geographical  features 
of  the  land  within  such  limits;  as  also  with  regard  to  the  location 
and  position  of  leading  cities,  villages,  and  public  places  therein. 
United  States  v.  Beebe,  2  Dak.  292. 

Besides  those  facts  of  which  courts  are  bound  by  law  to  take 
judicial  notice,  they  will  ordinarily  only  take  notice  of  facts  of 
universal  notoriety, — of  facts  that  are  so  generally  understood 
that  they  may  be  regarded  as  forming  part  of  the  common  knowl- 
edge of  every  person.  Brown  v.  Piper,  91  U.  S.  41,  23  L.  ed. 
201;  Kaolatype  Engraving  Co.  v.  Hoke,  30  Fed.  Rep.  441. 

To  aid  the  court,  a  document  which  is  a  proper  source  of  gen- 
eral information  for  the  purpose,  may  be  handed  up  to  the  judge. 
Abbott,  Trial  Brief,  §  494,  citing  Case  v.  Perew,  46  Hun,  57. 

§  2.  Judicial  Notice  Excludes  the  Necessity  of  Proof. — 
•"  No  evidence  of  any  fact  of  which  the  court  will  take  judicial 
notice  need  be  given  by  the  party  alleging  its  existence,  but  the 
judge,  upon  being  called  upon  to  take  judicial  notice  thereof, 
may,  if  he  is  unacquainted  with  such  fact,  refer  to  any  person  or 
document  or  book  of  reference  for  his  satisfaction,  in  relation 
thereto,  or  may  refuse  to  take  judicial  notice  thereof  unless  and 
until  the  party  calling  on  him  to  take  such  notice  produces  any 
such  document  or  book  of  reference."  Stephen,  Dig.  art.  59. 
See  also  Kennedy  v.  Com.  78  Ky.  447;  Rodgers  v.  State,  50  Ala. 
102;  Dorman  v.  State,  56  Ind.  454;  Williams  v.  State,  67  Ga. 
260;  Briffitt  v.  State,  5S  Wis.  39;  Waller  v.  State,  38  Ark.  656; 
Gallagher  v.  State,  10  Tex.  App.  469;  State  v.  Johnson,  26  Minn. 
•316;  United  States  v.  Beebe,  2  Dak.  292;  State  v.  Bowen,  16 
Kan.  475. 

§  3.  Late  Statutes  Relating  to  the  Subject. — The  most  ex- 
tended survey  of  the  adjudications  relative  to  this  subject  of 
judicial  notice  has  failed  to  disclose  the  presence  of  any  more  apt 
and  concise  expressions  than  those  contained  in  sections  707-708 
of  the  Statutory  Law  of  Oregon.  The  recitals  of  those  sections 
crystalize  the  entire  tenor  and  trend  of  American  adjudication  on 
the  subject;  and  the  legitimate  inferences  to  which  the  language 
used  may  be  justly  subjected,  will  demonstrate  the  rare  force  and 
precision  of  the  terms  employed.  1  append  this  entire  text  of 
these  justly  celebrated  sections. 

Courts  take  judicial  notice  of  the  following  facts: 


]±  LAW    OF    EVIDENCE    IN    CRIMINAL   CASES. 

1.  The  true  signification  of  all  English  words  and  phrases,  and 
of  all  legal  expressions. 

2.  Whatever  is  established  bylaw. 

3.  Public  and  private  official  acts  of  the  legislative,  executive,. 
ami  judicial  departments  of  this  state  and  of  the  United  States. 

•1.  The  seals  of  all  the  courts  of  this  state  and  of  the  United 
Stat,-. 

5.  The  accession  to  office,  and  the  official  signatures  and  seals 
of  office,  of  the  principal  offices  of  government  in  the  legislative, 
executive,  and  judicial  departments  of  this  state  and  of  the 
United  States. 

6.  The  existence,  title,  national  flag,  and  seal  of  every  state  or 
reign  recognized  by  the  executive  power  of  the  United  States. 

7.  The  seals  of  courts  of  admiralty  and  maritime  jurisdiction, 
and  of  notaries  public. 

8.  The  laws  of  nature,  the  measure  of  time,  and  the  geographi- 
cal divisions  and  political  history  of  the  world. 

In  all  these  cases  the  court  may  resort  for  its  aid  to  appropriate 
1 »<  'i  iks  or  documents  of  reference. 

This  subject  of  judicial  notice  has  been  accorded  extended 
treatment  in  1  Rice,  Civil  Evidence,  chap.  2.  To  avoid  extended 
reduplication  we  refrain  from  further  comment. 


CHAPTER  III. 

PRESUMPTIONS. 

§  13.   The  Term  Defined. 

14.  Presumptions  of  Law. 

15.  Presumptions  of  Fact. 

16.  Presumptions  of  Innocence. 

17.  Presumptions  of  Legitimacy. 

18.  Presumptions  of  Death. 

a.  Raised  by  Continuous  Absence  of  Seven  Years. 

b.  No  Presumption  as  to  the  Time  of  Death  Arises  from 

Mere  Absence. 

c.  How  Established. 

d.  Importance  of  this  Presumption  in  Criminal  Law. 

e.  Suicide. 

19.  Presumption  of  Sanity  and  Responsibility. 

20.  Presumption  where  Accused  is  under  Seven  Years  of  Age. 

21.  Continuance. 

22.  Presumption  of  Guilt  Arising  from  Silence  and  Conduct  Gen- 

erally. 

23.  Presumption  of  Natural  Consequences  of  Act. 

24.  Statutory  Law  of  California  on  the  Subject. 

§  13.  The  Term  Defined. — "A  presumption  arises, where,  some- 
facts  being  proved,  another  follows  as  a  natural  or  very  probable 
conclusion  from  them,  so  as  readily  to  gain  assent  from  the  mere 
probability  of  its  having  occurred,  without  further  proof.  The 
fact  thus  assented  to  is  said  to  be  presumed,  that  is,  taken  for 
granted,  until  the  contrary  be  proved  by  the  opposite  party; 
stabiter  jpraesumjptioni  donee  jprobetur  in  contrarium.  And  it  is 
adopted  the  more  readily,  in  proportion  to  the  difficulty  of  prov- 
ing the  fact  by  positive  evidence,  and  to  the  obvious  facility  of 
disproving  it,  or  of  proving  facts  inconsistent  with  it,  if  it  really 
never  occurred.  It  is,  therefore,  we  have  seen,  adopted  in  proof 
of  intent,  of  the  willful  doing  of  an  act,  of  malice,  and  of  guilty 
knowledge,  for  these  can  be  proved  only  by  the  admission  of  the 
party,  or  from  his  overt  acts,  from  which  the  jury  may  infer  oi 
presume  them.  It  is  adopted,  also,  in  proof  of  the  commission  of 
the  offense  itself,  in  the  absence  of  evidence  of  any  person  who- 

15 


10  LAW    OF    EVIDENCE    IN    CRIMINAL    CASES. 

actually  saw  it  committed,  as  shall  be  noticed  presently."  Arch- 
bold,  Criin.  Pr.  &  PI.  134. 

A  presumption  is  a  rule  of  law,  that  courts  and  judges  shall 
draw  from  certain  facts,  certain  inferences;  it  stands  as  a  rule 
dispensing,  in  certain  cases,  with  any  ulterior  inquiry.  It  assumes 
a  certain  condition  of  tilings  to  exist  until  the  contrary  is  shown. 
Schuylkill  <&  J).  In  p.  d )  IL  Co.  v.  Munson,  81  U.  S.  14  Wall. 
449,  20  L.  ed.  872. 

"A  presumption  of  any  fact  is  properly  an  inference  of  that 
fact  from  other  facts  that  are  known;  it  is  an  act  of  reasoning, 
and  much  of  human  knowledge  on  all  subjects  is  derived  from 
this  source.  A  fact  must  not  be  inferred  without  premises  that 
will  warrant  the  inference;  but  if  no  fact  could  thus  be  ascer- 
tained by  inference  in  a  court  of  law,  very  few  offenders  could  be 
brought  to  punishment."     Hex  v.  Burdett,  4  Barn.  &  Aid.  161. 

It  is  a  species  of  evidence  which  proceeds  upon  the  theory  that 
the  jury  can  infer  the  existence  of  a  fact  from  another  fact  that 
is  proved,  and  which  most  usually  accompanies  it.  Home  Ins. 
Co.  v.  Weide,  78  U.  S.  11  Wall.  440,  20  L.  ed.  198.  See 
also  Stanley  v.  State,  26  Ala.  30;  Binns  v.  State,  66  Ind.  432; 
Chesleij  v.  Brown,  11  Me.  146;  Bow  v.  Allenstown,  34  N.  H.  365, 
69  Am.  Dec.  4S9;  Snediker  v.  Everingham,  27  K  J.  L.  150,  153; 
Pa  its  x'.  Jackson,  6  Wend.  181;  Jackson  v.  Warford,  7  Wend.  66; 
McConneWs  App.  97  Pa.  34;  Oaks  v.  Welter,  16  Vt.  71;  Welch 
v.  Sackett,  12  Wis.  257. 

§  14.  Presumptions  of  Law. — With  regard  to  presumptions 
of  law  there  is  not  much  difficulty,  the  circumstances  under  which 
they  arise  being  generally  pretty  clearly  defined.  It  is  not  so, 
however,  with  regard  to  presumptions  of  fact,  there  being  fre- 
quently the  difficulty  not  only  of  deciding  whether  a  particular 
presumption  ought  to  be  made  at  all,  but  which  of  several  pre- 
sumptions arising  out  of  the  same  state  of  facts  is  the  right  one. 

In  civil  eases  it  is  always  necessary  for  a  jury  to  decide  the 
question  at  issue  between  the  parties,  and,  whatever  be  their  deci- 
sion, the  rights  of  the  parties  will  accordingly  be  affected;  however 
much,  therefore,  they  may  be  perplexed,  they  cannot  escape  from 
giving  a  verdict  founded  upon  one  view  or  the  other  of  the  con- 
flicting  facts  before  them;  presumptions,  therefore,  are  necessarily 
made  on  comparatively  weak  grounds.  Put  in  criminal  cases 
there  is  always  a  result  open  to  the  jury,  which  is  practically 


PBESUMPTIOflS.  17 

looked  upon  as  merely  negative,  namely,  that  which  declares  the 
accused  to  be  not  guiltv  of  the  crime  with  which  he  is  charged. 
In  cases  of  doubt  it  is  to  this  view  that  juries  are  taught  to  lean. 
1  Phil.  Ev.  (10th  ed.)  456;  M'Xally,  (Mm.  Ev.  578.  "  Great  cau- 
tion is,  doubtless,  necessary  in  all  cases  of  presumptive  evidence, 
.and,  accordingly,  Lord  Hale  has  laid  down  two  rules  with  regard 
to  the  acting  upon  such  evidence  in  criminal  cases.  "I  would 
never,"  he  says,  "convict  any  person  of  stealing  the  goods  of  a 
certain  person  unknown,  merely  because  he  could  not  give  an 
account  how  he  came  by  them,  unless  there  was  due  proof  made 
that  a  felony  was  committed  of  these  goods."  And  again,  "I 
would  never  convict  any  person  of  murder  or  manslaughter, 
unless  the  fact  were  proved  to  be  done,  or,  at  least,  the  body  found 
■dead."  2  Hale,  P.  C.  290.  So  it  is  said  by  Sir  William  Black- 
stone,  4  Bl.  Com.  359,  that  all  presumptive  evidence  of  felony 
should  be  admitted  cautiously,  for  the  law  holds  that  it  is  better 
that  ten  guilty  persons  escape,  than  that  one  innocent  suffer. 
See  1  Jtoscoe,  Crim.  Ev.  16. 

Presumptions  of  law  are,  in  reality,  rules  of  law  and  part  of  the 
law  itself;  and  the  court  may  draw  the  inference  whenever  the 
requisite  facts  are  developed,  whether  in  pleading  or  otherwise, 
while  all  other  presumptions,  however  obvious,  being  only  infer- 
■.ences  of  fact,  cannot  be  made  without  the  intervention  of  *a  jury. 
Pest,  Presumptions,  IS.  The  presumption  of  innocence,  of  sani- 
ty, that  all  men  are  free,  etc.,  are  examples  of  presumptions  of 
law.  So,  too,  a  promise  will  be  implied  from  a  legal  obligation. 
But  the  presumption  of  the  existence  of  one  fact  from  the  exist- 
ence of  another,  that  is,  the  progress  of  ascertaining  one  fact  from 
the  proof  of  another  fact,  is  within  the  exclusive  province  of  the 
jury.  1  Green! .  Ev.  §  48.  The  usual  presumption  as  to  a  ship 
which  becomes  distressed,  or  founders  without  apparent  cause 
shortly  after  leaving  port,  is  that  she  was  unseaworthy  when  she 
sailed;  but  the  presumption  is  one  of  fact  and  for  the  jury,  under 
instructions  from  the  court,  and  subject  to  the  power  of  the  court 
to  set  aside  the  verdict  if  against  evidence.  Best,  Presumptions, 
50.  Whether  an  agreement  to  pay  interest  is  to  be  presumed 
from  the  established  usage  and  custom  is  a  question  for  the  jury. 
Jleech  v.  Smith,  7  Wend.  315.  When  there  is  a  dispute  as  to 
the  facts  which  go  to  prove  the  making  of  a  new  promise,  whether 
a  sufficient  promise  has  been  made  to  take  the  case  out  of  the 
2 


18  LAW    OF    EVIDENCE   IN   CRIMINAL   CASES. 

statute  of  limitations,  is  a  mixed  question  of  law  and  fact  for  the- 
jury.     Clarke  v.  Butcher,  9  Cow.  074. 

Presumptive  evidence  and  the  presumptions  or  proofs  to  which 
it  gives  rise  are  not  indebted  for  their  probative  force  to  any  rules 
of  positive  law;  but  juries,  in  inferring  one  fact  from  others 
which  have  been  established,  do  nothing  more  than  apply,  under 
the  sanction  of  the  law,  a  process  of  reasoning,  the  force  of  which 
rests  on  experience  and  observation,  and  such  inferences  are  pre- 
sumptions of  fact.  Best,  Presumptions,  15,  §  14;  Morgan  v. 
Bavey,  6  Hurlst.  &  N.  265. 

Presumptions  are  of  two  classes,  natural  and  legal  or  artificial. 
The  natural  presumption  is,  when  a  fact  is  proved,  wherefrom  by 
reason  of  the  connection  founded  on  experience,  the  existence  of 
another  fact  is  directly  inferred.  The  legal  or  artificial  presump- 
tion is,  where  the  existence  of  the  one  fact  is  not  direct  evidence 
of  the  existence  of  the  other,  but  the  one  fact  existing  and  being 
proved,  the  law  raises  an  artificial  presumption  of  the  existence  of 
the  other.  Forbearance  to  enforce  a  pecuniary  demand  for 
twenty  years,  is  not  direct  evidence  that  the  money  has  been  paid, 
but  on  the  fact  of  forbearance,  the  law  builds  a  presumption  that 
the  demand  has  been  satisfied,  since  it  wisely  supposes  a  man  will 
sooner  recover  and  enjoy  what  belongs,  or  is  due  to  him,  unless 
prevented  by  some  impediment.  The  law  gives  to  the  evidence 
a  technical  efficacy  beyond  its  simple  and  natural  force  and  opera- 
tion. Inasmuch  then  as  this  is  but  a  presumptive  bar,  the  fact 
which  the  lapse  of  time  conduces  to  prove  must  be  pleaded,  and 
not  the  mere  lapse  itself.     Gulick  v.  Loder,  13  1ST.  J.  L.  68. 

§  15.  Presumptions  of  Fact. — Presumptions  of  fact  are  but 
inferences  drawn  from  other  facts  and  circumstances  in  the  case, 
and  should  be  made  upon  the  common  principles  of  induction.  I 
am  aware  that  many  of  the  elementary  writers  have  said  that  pre- 
sumption may  be  looked  upon  as  bold  inferences  pushed  further 
than  the  facts  established  will  strictly  warrant.  Gresley,  Equity 
Ev.  372. 

These  extreme  cases  of  forced  and  extravagant  presumptions 
are  very  justly  dealt  with  by  Sir  W.  D.  Evans  (see  appeal  to 
Pothier,  331)  where  he  says  :  "  The  principle  adopted  in  Wilkin- 
son v.  Payne,  -f  T.  R.  4<is,  is  certainly  very  dangerous  in  its  ten- 
dency, as  it  goes  to  subvert  the  main  foundations  of  the  distinc- 
tion between  truth  and  falsehood.     He  adds,  many  cases  must 


PRESUMPTIONS.  19 

occur  in  the  administration  of  justice,  when  the  wishes  of  those 
who  are  to  decide  must,  from  the  nature  of  the  circumstances,  be 
in  opposition  to  the  legal  right,  but  if  we  once  began  to  shake  the 
rule,  that  the  law  is  to  command  and.  the  judges  to  obey;  if  we 
once  admit  the  propriety  of  professing  to  believe  as  true,  what  we 
are  actually  convinced  is  not  so,  nobody  can  [say  where  the  devi- 
ation will  stop,  and  legal  certainty  will  be  sacrificed  at  the  shrine 
of  judicial  discretion."  These  views  are  quoted  with  approbation 
by  Gresley,  at  page  374.  Mr.  Starkie,  in  speaking  of  this  case  of 
Wilkinson  v.  Payne  and  Stcmden  v.  Standen,  6  T.  TL  331  n. 
(cited  in  4  T.  R.  469)  says  it  may  be  very  questionable,  whether 
such  decisions  are  not  only  contrary  to  sound  policy,  but  even 
positively  mischievous.  He  adds,  do  they  not  afford  temptation 
to  juries  in  hard  cases,  to  trifle  with  the  sacred  obligation  of  an 
oath  ?     2  Starkie,  Ev.  686,  note/. 

Still  another  definition  is  to  the  effect  that  "a  presumption  of 
fact  is  an  inference  of  the  existence  of  a  certain  fact  arising  from 
its  necessary  and  usual  connection  with  other  facts  which  are 
known.  The  principle  is  recognized  in  criminal  jurisprudence 
that  proof  of  certain  facts  may  lead  irresistably  to  the  presump- 
tion that  another  act,  of  which  there  is  no  direct  proof,  was  com- 
mitted or  done.  Men  are  presumed  to  act  according  to  their  own 
interests.  It  is  presumed  that  regular  and  ordinary  means  are 
adopted  for  a  given  end.  So  where  the  means  calculated  to  attain 
a  certain  end  appear  to  have  been  adopted,  and  the  end  itself  ap- 
pears to  have  been  attained,  a  particular  completion  will  be  pre- 
sumed."    1  Phil.  Ev.*  599-610;  Roberts  v.  People,  9  Colo.  458. 

"Presumptions  of  fact  are  inferences  as  to  the  existence  of  some 
fact  drawn  from  the  existence  of  some  other  fact;  inferences 
which  common  sense  draws  from  circumstances  usually  occurring 
in  such  cases."  Presumptions  of  fact  are  derived  from  circum- 
stances of  the  particular  case,  by  means  of  the  common  experience 
of  mankind.  Kent  v.  People,  8  Colo.  563;  Bouvier,  Law  Diet. 
title  Presumption. 

§16.  Presumptions  of  Innocence. — The  first  presumption 

of  criminal  law — one  of  extended  application  and  wide  recogni- 
tion, is  that  which  presumes  the  innocence  of  the  accused,  ami 
insists  upon  such  evidence  to  the  contrary  as  will  establish  guilt 
beyond  a  reasonable  doubt.  People  v.  TJwyer:  1  Park.  Crirn. 
E,ep.  595. 


20  T.A-W    (jF    K\  lUEJS'CE    IN    CKIMINAL   CASES. 

A  defendant  has  this  presumption  of  innocence  with  him 
through  the  whole  case.  The  advantage  he  derives,  however, 
from  the  fact  that  the  burden  is  on  the  prosecution  to  make  out 
the  points  it  advances,  is  only  temporary.  As  soon  as  this  is  done 
to  such  an  effect  as  to  sustain  a  verdict  of  guilty,  then,  should  the 
proof  close  at  that  point,  the  case  goes  to  the  jury  free  from  any 
presumptions  arising  from  the  prior  imposition  of  this  burden. 
Whart.  Crim.  Ev.  §  322;  Nevling  v.  Com.  98  Pa.  322;  People  v. 
Cheong  Foon  Ark,  61  Cal.  527;  Jones  v.  State,  13  Tex.  App.  1; 
Case  v.  People,  76  N.  Y.  212. 

AVhile  it  is  true  that  the  recent  possession  of  stolen  property, 
unexplained,  raises  a  presumption  that  the  person  in  possession  stole 
it;  but  this  is  only  a  rule  of  evidence,  and  the  presumption  may 
be  overcome  by  the  proof  showing  that  the  possession  is  not  in- 
consistent with  an  honest  intention.  Housh  v.  People,  75  111. 
i^7.  Here  we  have  an  apt  illustration  of  the  extreme  tenderness 
of  the  criminal  law  for  persons  accused  of  crime.  And  this  pre- 
sumption of  innocence  accompanies  the  suspect  in  all  stages  of 
the  trial.     A  familiar  passage  will  serve  to  emphasize  this  truth. 

"In  the  investigation  and  estimate  of  criminatory  evidence  there 
is  an  antecedent  prima  facie  presumption  in  favor  of  the  innocence 
of  the  party  accused,  grounded  in  reason  and  justice,  and  recog- 
nized in  the  judicial  practice  of  all  civilized  nations;  which  pre- 
sumption must  prevail  until  it  be  destroyed  by  such  an  overpow- 
ering amount  of  legal  evidence  of  guilt  as  is  calculated  to  produce 
the  opposite  belief.  It  must  be  admitted  that  in  the  aggregate, 
the  number  of  convictions  vastly  exceeds  that  of  acquittals,  and 
that  the  probability  is  that,  in  a  given  number  of  cases,  far  the 
greater  number  of  the  parties  accused  are  guilty;  but  according 
to  all  judicial  statistics,  and  under  every  system,  a  considerable 
proportion  of  the  persons  put  upon  trial  are  legally  innocent.  In 
any  particular  case,  therefore,  the  party  may  not  be  guilty,  and  it 
is  impossible,  without  a  violation  of  every  principle  of  justice,  to 
act  upon  the  contrary  presumption  of  a  superior  probability  of 
guilt.  It  is,  therefore,  a  settled  and  inviolable  principle,  that  an- 
terior to  contrary  proof,  the  accused  shall  be  considered  as  legally 
innocent,  and  that  his  case  shall  receive  the  same  dispassionate 
and  impartial  consideration  as  if  he  were  really  so."  "Wills,  Circ. 
Ev.  117. 

The  law  in  its  partiality  to  the  presumption  of  innocence,  will 


PRESUMPTIONS.  21 

insist  that  where  conflicting  presumptions  supervene  the  stronger 
of  the  two  must  prevail;  and  that  the  presumption  of  innocenoe 
must  be  deemed  superior. 

This  does  not  compromise  the  well  known  rule,  which  allows  a 
presumption  to  be  rebutted  by  a  contrary  presumption,  which 
latter  is  more  conclusive  in  its  character. 

Mr.  Lawson  in  his  well  known  work  on  "Presumptive  Evi- 
dence," enters  upon  an  able  discussion  of  this  subject,  and  defends 
his  views  with  logic  and  ingenuity.  He  says  at  p.  458:  "The 
presumption  of  sanity  and  the  presumption  of  innocence  coming 
in  conflict,  the  latter  must  give  way  according  to  the  best  consid- 
ered doctrine  on  this  question.  The  subject  is  an  important  one, 
and  has  led  to  much  discussion.  The  decisions  are  not  harmoni- 
ous, and  no  question  is  more  debated  at  the  present  time,  when  it 
arises  for  actual  decision,  than  the  question  of  the  burden  of  proof 
of  insanity  in  criminal  cases." 

The  absence  of  a  motive  for  the  commission  of  a  crime,  proved 
for  the  purpose  of  strengthening  the  presumption  of  innocence; 
and  conversely,  the  presence  of  a  motive  may  be  shown  to 
strengthen  the  hypothesis  of  guilt.  This  is  well  recognized  logic 
under  all  systems  of  criminal  jurisprudence. 

In  Danner  v.  State,  54  Ala.  127,  25  Am.  Eep.  662,  it  was  held 
that  while  the  law  presumes  every  one  innocent,  it  does  not  pre- 
sume anyone  to  have  a  good  character,  and  a  fortiori  it  will 
not  presume  chastity  in  a  prosecutrix  for  rape. 

So  a  witness  is  presumed  to  speak  the  truth.  But  this  pre- 
sumption may  be  repelled  by  the  manner  in  which  he  testifies,  by 
his  interest  in  the  controversy,  by  the  character  of  his  testimony, 
or  by  evidence  affecting  his  character  or  motives,  or  by  contradic- 
tory evidence. 

§  17.  Presumptions  of  Legitimacy.— Upon  this  subject  Mr. 
Stephen  very  aptly  observes :  "The  fact  that  any  person  was 
born  during  the  continuance  of  a  valid  marriage  between  his 
mother  and  any  man,  or  within  such  a  time  after  the  dissolution 
thereof  and  before  the  celebration  of  another  valid  marriage,  that 
his  mother's  husband  could  have  been  his  father,  is  conclusive 
proof  that  he  is  the  legitimate  child  of  his  mother's  husband,  un- 
less it  can  be  shown  either  that  his  mother  and  her  husband  had 
no  access  to  each  other  at  any  time  when  lie  could  have  been  be- 
gotten, regard  being  had  both  to  the  date  of  the  birth  and  to  tho 


22  LAW    OF    EVIDENCE    IN    CRIMINAL   CASES. 

physical  condition  of  the  husband,  or  that  the  circumstances  of 
their  access  (if  any)  were  such  as  to  render  it  highly  improbable 
that  sexual  intercourse  took  place  between  them  when  it  occurred. 
Neither  the  mother  nor  the  husband  is  a  competent  witness  as  to 
the  fact  of  their  having  or  not  having  had  sexual  intercourse  with 
each  other,  nor  are  any  declarations  by  them  upon  that  subject 
deemed  to  be  relevant  facts  when  the  legitimacy  of  the  woman's 
child  is  in  question,  whether  the  mother  or  her  husband  can  be 
called  as  a  witness  or  not,  provided  that  in  applications  for  affilia- 
tion orders  when  proof  has  been  given  of  the  non-access  of  the 
husband  at  any  time  when  his  wife's  child  could  have  been  be- 
gotten, the  wife  may  give  evidence  as  to  the  person  by  whom  it 
was  begotten."     Stephen,  Dig.  art.  98. 

§  18.  Presumptions  of  Death. — A  person  shown  not  to  have 
been  heard  of  for  seven. years  by  those  (if  any)  who,  if  he  had 
been  alive,  would  naturally  have  heard  of  him,  is  presumed  to  be 
dead,  unless  the  circumstances  of  the  case  are  such  as  to  account 
for  his  not  being  heard  of  without  assuming  his  death,  but  there 
is  no  presumption  as  to  the  time  when  he  died,  and  the  burden  of 
proving  his  death  at  any  particular  time  is  upon  the  person  who 
asserts  it.  There  is  no  presumption  as  to  the  age  at  which  a  per- 
son died  who  is  shown  to  have  been  alive  at  a  given  time,  or  as  to 
the  order  in  which  two  or  more  persons  died  who  are  shown  to 
have  died  in  the  same  accident,  shipwreck  or  battle.  Stephen, 
Dig.  art.  99\ 

a.  liaised  by  Continuous  Absence  for  Seven  Years. — The 
protracted  absence  of  a  person  from  his  home  and  friends  for  a 
period  of  seven  years,  during  which  time  he  is  not  heard  from, 
raises  the  presumption  of  death.  Rosenthal  v.  Mayhugh,  33  Ohio 
St.  155;  Rice  v.  Zumley,  10  Ohio  St.  596;  Holmes  v.  Johnson,  4:2 
Pa.  159;  Prvmm  v.  Stewart,  7  Tex.  183;  Davie  v.  Briggs,  97  U. 
S.  628,  21  L.  ed.  1086;  Adams  v.  Jones,  39  Ga.  508;  Proctor  v. 
M'Call,  2  Bail.  L.  298,  23  Am.  Dec.  135;  Lajoye  v.  Primm,  3 
Mo.  529;  Hoyt  v.  NewboU,  15  N.  J.  L.  219,  16  Ad:..  Rep.  TOT; 
Stevens  v.  McNamara,  36  Me.  176,  58  Am.  Dec.  710;  Doe  v. 
Flanagan,  1  Ga.  538;  Spears  v.  Barton,  31  Miss.  551;  Ashbury 
v.  Sanders,  8  Cal.  62,  68  Am.  Dec.  300;  Godfrey  v.  Schmidt, 
1  Cheves,  Eq.  5T;  Moffit  v.  Varden,  5  Cranch,  C.  C.  658;  Craw- 
ford v.  Elliott,  1  Iloust  (Del.)  165;  Hancock  v.  American  L. 
Ins.  Co.  62  Mo.  26;  Smith  v.  Knowlton,  11  K  H.  196;  King  v. 


PKESLMPTIONS.  23 

Paddock,  18  Johns.  141;  Bradley  v.  Bradley,  4  Whart.  173; 
Loring  v.  Steineman,  1  Met.  210. 

b.  No  Presumption  as  to  the  Time  of  Death  Arises  from 
Mere  Absence. — Although  a  person  who  lias  not  been  heard  of 
for  seven  years  is  presumed  to  be  dead,  the  law  raises  no  pre- 
sumption as  to  the  time  of  his  death;  and,  therefore,  if  anyone 
has  to  establish  the  precise  period  during  those  seven  years  at 
which  such  person  died,  he  must  do  so  by  evidence  and  can  nei- 
ther rely,  on  the  one  hand,  on  the  presumption  of  death,  nor,  on 
the  other,  upon  the  continuance  of  life.  These  views  are  in 
harmony  with  the  settled  laws  of  the  English  courts,  as  will  be 
seen  from  an  examination  of  the  authorities.  Hopewell  v.  De- 
Pinna,  2  Campb.  \Y6\Reg.  v.  Lumley,  L.  R.  1  C.  C.  190;  Dunn 
v.  Snowden,  32  L.  J.  Ch.  Hi^Lambe  v.  Orton,  29  L.  J.  Ch.  286; 
including  the  leading  case  in  the  court  of  exchequer  of  Nepean 
v.  Knight,  2  Mees.  <k  W.  894,  in  error  from  the  Court  of  King's 
Bench.  In  that  case  Lord  Denman,  Ch.  J.,  said:  "We  adopt 
the  doctrine  of  the  Court  of  King's  Bench  that  the  presumption 
of  law  relates  only  to  the  fact  of  death,  and  that  the  time  of  death, 
whenever  it  is  material,  must  be  a  subject  of  distinct  proof."  To 
the  same  effect  is  the  preponderance  of  authority  in  this  country. 
McCartee  v.  Camel,  1  Barb.  Ch.  456,  5  L.  ed.  453;  Lancaster  v. 

Washington  L.  Ins.  Co.  of  New  York  City,  62  Mo.  121;  Stouve- 
nel  v.  Stephens,  2  Daly,  319;  Hancock  v.  Am*  rican  L.  Ins.  Co. 
62  Mo.  26;  Stt  vens  v.  McNamara,  36  Me.  176;  Whiting  v.  JVich- 
oll,  46  111.  230,  92  Am.  Dec.  248;  Smith  v.  Knowlton,  11  K  H. 
191;  Fl/ynn  v.  Coffee,  12  Allen,  133;  Lorlng  v.  Stememan^l  Met. 
204;  Spurr  v.  Tri/mhle,  1  A.  K.  Marsh.  278;  Doe  v.  Flanagan.  1 
Ga.  538;  Smith  v.  Smith,  49  Ala.  156;  Gihhes  v.  Vincent,  11 
Rich.  L.  323. 

For  an  exhaustive  review  of  the  authorities  sustaining  this  pre- 
sumption, see  the  opinion  of  Mr.  Justice  Harlan  in  Davie  v. 
Briggs,  97  U.  S.  628,  24  L.  ed.  1086.  See  also  Whiting  v.  Nich- 
■oil,  46  111.  230,  92  Am.  Dec  248;  Youngs  v.  Hefner,  36  Ohio 
St.  232;  Adams  v.  Jones,  39  Ga.  47'.';  Went/worth  v.  Wentworth, 
71  Me.  72;  Smith  v.  Smith,  49  Ala.  156. 

c.  How  Established. — Any  evidence  calculated  to  negative 
the  presumption  of  life  is  competent  to  establish  the  presumption 
of  death.  Anderson  v.  Parker,  <>  Cal.  L97;  Ruloffv.  People,  is 
X.  Y.  179;  Crouch   v.  Eveleth,  15  Mass.   •'!"">;  Hancock  Mut.  I. 


24  LAW    OF    EVIDENCE    IN    CRIMINAL    CASES. 

Ins.  Co.  v.  Moore,  34  Mich.  41;  Bailey  v.  Bailey,  25  Mich.  185;; 
Scheel  v.  Eidman,  77  111.  304;  Jackson  v.  Etz,  5  Cow.  319. 

d.  Importance  of  this  Presumption  in  Criminal  Law. — 
The  presumption  of  life  or  death  is  one  of  great  importance  in 
criminal  law.  For  an  elaborate  discussion  of  the  principles  un- 
derlying this  presumption,  see  the  opinion  of  Johnson,  Ch.  J.,  in 
Buloffv.  People,  IS  N.  Y.  179. 

Mr.  Wills,  in  his  treatise  on  Circumstantial  Evidence,  says: 
"Death  may  be  inferred  from  such  strong  and  unequivocal  cir- 
cumstances that  render  it  morally  certain  and  leave  no  ground  for 
doubt."  p.  208. 

e.  Suicide. — In  the  case  of  Persons  v.  State,  90  Tenn.  291,  the- 
court  below  charged  the  jury  in  the  manner  following:  "All 
tilings  being  equal  you  are  to  presume  that  a  party  found  dead 
did  not  die  by  his  own  hands.  In  all  cases  of  sudden  death  the- 
presumption  of  the  love  of  life  negatives  the  idea  of  suicide.  It 
is  true,  however,  that  this  presumption  of  death  other  than  by 
suicide,  yields  at  once  to  any  inference  that  may  be  logically  in- 
ferred from  the  facts  of  the  case." 

On  appeal,  the  supreme  court,  speaking  through  Turney,  Ch.  J.r 
held  this  to  constitute  reversible  error  in  that  it  left  the  jury  to 
conclude  that  if  the  proof  preponderated  against  the  contention 
for  suicide,  or  was  evenly  balanced,  then  it  was,  by  a  rule  of  law, 
required  to  find  against  the  insistence  of  the  defense;  that  the  de- 
fendant was  not  entitled  to  the  benefit  of  a  reasonable  doubt,  but 
must  make  out  to  the  satisfaction  of  the  jury  that  the  deceased 
took  his  own  life.  It  placed  the  defendant  in  the  relation  of 
prosecutor  to  make  clear  a  case  of  suicide  before  he  could  insist 
upon  such  facts  as  conducing  to  prove  an  hypothesis  inconsistent 
with  his  own  guilt. 

When  the  defendant  has  shown  conduct,  declarations,  and  cir- 
cumstances pointing  to  a  suicidal  intent,  then  it  devolves  upon 
the  state  to  show  satisfactorily  and  beyond  a  reasonable  doubt  it 
was  not  suicide,  before  the  defendant  can  be  deprived  of  the 
benefit  of  such  reasonable  doubt  as  his  facts  would  create.  The 
charge  of  the  judge  reversed  the  rule,  and  put  the  burden  of 
full  proof  on  the  defendant.     Persons  v.  State,  90  Tenn.  291. 

In  civil  cases,  where  one  has  been  found  dead,  even  with  marks 
of  violence,  nothing  else  appearing,  the  presumption  is  that  the 
deceased  did  not  commit  suicide,  as  also  that  he  or  she  was  not 


PRESUMPTIONS.  25* 

murdered.  Accident  Ins.  Co.  of  iV.  A.  v.  Bennett,  90  Teim.  236. 
Further  it  appears  that  upon  a  charge  of  homicide,  even  when  the 
body  has  been  found,  and  although  iudications  of  a  violent  death 
be  manifest,  it  shall  still  be  fully  and  satisfactorily  proved  that 
the  death  was  neither  occasioned  by  natural  causes,  by  accident, 
nor  by  the  deceased  himself.     1  Starkie,  Ev.  575. 

While  it  is  unquestionably  true  that  the  rules  of  evidence  are 
the  same  in  civil  and  criminal  cases,  it  does  not  follow  that  be- 
cause the  rule  is  the  same  that  presumptions  applicable  in  one  are 
always  applicable  in  the  other.  An  antagonistic  presumption 
may  exist,  and  does  in  criminal  cases — that  is,  the  innocence  of 
the  defendant.  So  the  presumption  that  a  deceased  did  not  com- 
mit suicide  cannot  be  applied  in  criminal  cases  against  the  pre- 
sumption of  innocence.     Persons  v.  State,  90  Tenn.  291. 

§  19.  Presumption  of  Sanity  and  Responsibility. — Should 
the  question  of  insanity  become  one  of  any  importance  in  a 
criminal  proceeding,  reliance  may  be  had  upon  the  postulate  of 
law  which  attributes  to  all  persons  the  possession  of  their  faculties. 
Where  the  contrary  is  alleged  it  must  be  proved.  Lilly  v. 
Waggoner,  27  111.  395;  State  v.  Pike,  49  N.  II.  399,  6  Am.  Eep. 
533;  Stubbs  v.  Houston,  33  Ala.  555;  Thornton  v.  Appleton,  29 
Me.  300;  United  States  v.  Me  Glue,  1  Curt.  C.  C.  1;  Runyan  v. 
Price,  15  Ohio  St.  1,  86  Am.  Dec.  459;  Cotton  v.  TJlmer,  45  Ala. 
378,  6  Am.  Kep.  703;  Farrell  v.  Brennan,  32  Mo.  328,  S2  Am. 
Dec.  137;  State  v.  Smith,  53  Mo.  267;  Porter  v.  Campbell,  2 
Baxt.  81;  Saxon  v.  Whitaker,  30  Ala.  237;  Den  v.  Vancleve,  4 
Wash.  C.  C.  262;  Jackson  v.  Van  Dusen,  5  Johns.  158,  4  Am. 
Dec.  330;  Jackson  v.  King,  4  Cow.  207, 15  Am.  Dec.  354;  Egbert 
v.  Egbert,  78  Pa.  328;  Anderson  v.  Cranmer,  11  W.  Va.  562;- 
Weed  v.  Mutual  Benefit  L.  Ins.  Co.  70  N.  Y.  561;  Brown  v. 
Torrey,  24  Barb.  5S3;  Walter  v.  People,  32\N".  Y.  147;  Gardner 
v.  Gardner,  22  Wend.  526,  34  Am.  Dec.  340.  In  Weed  v. 
Mutual  Benefit  L.  Ins.  Co.  it  was  said:  "The  sanity  of  every 
individual  is  presumed,  and  insanity  cannot  be  presumed  from 
the  mere  fact  of  suicide." 

Sanity  is  a  normal  condition,  and  the  criminal  law  harbors  the 
presumption  that  all  men  are  in  possession  of  their  faculties  to 
the  extent  of  intending  or  contemplating  the  natural  results  of 
the  act  they  commit.  It  follows,  that  where  the  prosecution  has 
proved  the  commission  of  an  offense,  the  legal  presumption  as  to 


•v,  law  of  evidence  in  criminal  cases. 

sanity  may  l>e  invoked  as  supplemental  to  this  proof,  and  the 
state  has  made  out  a  prima  facie  case  sufficient,  without  rebutting 
testimony,  to  sustain  the  conviction. 

Upon  this  showing,  where  the  defendant  seeks  to  avoid  the 
consequences  of  his  offense  through  the  plea  of  insanity,  the 
burden  of  proof  in  a  certain  sense  shifts,  and  it  devolves  upon 
him  to  show  that  the  presumption  of  insanity  is  to  be  ignored. 
It  should  be  added  that  the  presumption  of  innocence  clings  to 
the  accused  throughout  the  entire  trial.  IIopps  v.  People,  31  111. 
385,  83  Am.  Dec.  231;  Alexander  v.  People,  96  111.  96;  Bradley 
v.  State,  31  Ind.  192;  McDougal  v.  State,  88  Ind.  24;  State  v. 
Jones,  61  Iowa.  349;  State  v.  Crawford,  11  Kan.  32;  People  v. 
Garljvtt,  17  Mich.  9,  97  Am.  Dec.  162;  Cunningham  v.  State,  56 
Mi-,  i'-;'.'.  21  Am.Kep.  360;  Wright  v.  People,^  Neb.  407;  State 
v.  Pike,  4'.  i  X.  H.  399,  6  Am.  Eep.  533;  State  v.  Waterman,  1 
Nev.  543;  OH  'onru  11  v.  People,  87  K  Y.  377,  41  Am.  Eep.  379; 
Dove  v.  State,  3  Heisk.  348;  State  v.  Patterson,  45  Vt.  308,  12 
Am.  Rep.  200.  There  is  considerable  contradiction  upon  this 
subject,  and  the  practitioner  must  observe  the  lex  for  I  in  all  cases. 

When  the  evidence  of  sanity  on  the  one  side,  and  of  insanity 
on  the  other,  leaves  the  scale  in  equal  balance,  or  so  nearly  poised 
that  the  jury  have  a  "  reasonable  doubt,"  there  a  man  is  to  be 
considered  sane  and  responsible  for  what  he  does.  But  if  the 
probability  of  his  being  insane  at  the  time  is,  from  the' evidence 
in  the  case,  very  strong,  and  there  is  but  a  slight  doubt  of  it,  then 
the  jury  ought  to  say,  that  the  evidence  of  his  insanity  was  clear. 
The  proof  of  insanity  at  the  time  of  committing  the  act,  ought  to 
be  as  clear  and  satisfactory,  in  order  to  acquit  him  on  the  ground 
of  insanity,  as  the  proof  of  committing  the  act  ought  to  be,  in 
order  to  find  a  sane  man  guilty.  State  v.  Spencer,  21  JS".  J.  L. 
196. 

§20.  Presumption  where  Accused  is  Under  Seven  Years 
of*  Age. — .V  child  of  the  age  of  seven  years,  and  under  the  age  of 
twelve  years,  is  presumed  to  be  incapable  of  crime,  but  the  pre- 
sumption may  be  removed  by  proof  that  he  had  sufficient  capacity 
to  understand  the  act  or  neglect  charged  against  him,  and  to 
know  its  wrongfulness.  Whenever  in  any  legal  proceedings  it 
becomes  necessary  to  determine  the  age  of  a  child,  the  child  may 
be  produced  for  personal  inspection,  to  enable  the  magistrate, 
<court  or  jury  to  determine  the   age  thereby;    and  the  court  or 


PRESUMPTIONS.  27 

magistrate  may  direct  an  examination  by  one  or  more  physicians, 
whose  opinion  shall  also  be  competent  evidence  upon  the  question 
of  age.  A  copy  of  the  record  of  baptism  of  any  child  in  any 
parish  register,  or  register  kept  in  a  church,  or  by  a  clergyman 
thereof,  or  a  certificate  of  baptism  duly  authenticated  by  the  per- 
.son  in  charge  of  such  register,  or  who  administered  said  baptism, 
.and  also  a  transcript  of  the  record  of  birth  recorded  in  any  bureau 
of  vital  statistics  or  board  of  health,  duly  authenticated  by  its 
secretary  or  under  its  seal,  and  the  entries  made  in  a  family  Bible, 
shall  also  be  competent  evidence  upon  the  question  of  the  age. 
X.  T.  Penal  Code,  §  19. 

An  infant  is  capable  of  testifying  to  his  own  age.  Cheever  v. 
Congdon,  34  Mich.  296;  Morrrison  v.  Emstey,  53  Mich.  564; 
Ct  ntral  P.  Co.  v.  Coggin,  73  Ga.  689. 

The  court  may  rely  upori  its  own  judgment  as  to  the  prisoner's 
age,  or  the  jury  may  determine  it  by  general  inspection  or  by  any 
•evidence  in  the  case.  People  v.  New  York  County  Justices,  10 
Hun,  224;  Com.  v.  Emmons,  98  Mass.  6.  Evidence  may  be  re- 
ceived from  any  person  capable  of  giving  it  for  the  purpose  of 
proving  the  fact,  or  where  the  appearance  of  the  prisoner  suffi- 
ciently indicates  his  proper  age,  that  may  be  acted  upon  as  evi- 
dence of  the  fact.  State  v.  A /'/told,  35  N.  C.  184;  contra,  Ihinger 
v.  State,  53  Ind.  251. 

§  21.  Continuance. — Another  presumption  of  law  and  one 
that  is  believed  without  qualification  is  this  :  Where  a  condition 
or  state  regarding  persons  or  things  is  shown  to  exist,  that  condi- 
tion or  state  is  presumed  to  continue  until  the  contrary  is  shown. 
Kidder  v.  Stevens,  60  Cal.  415;  Mullen  v.  Pryor,  12  Mo.  307; 
Eames  v.  Eames,  4:1  N.  H.  177;  Garner  v.  Green,  8  Ala.  96; 
Hood  v.  Hood,  2  Grant,  Cas.  229;  Gould  v.  Norfolk  Lead  Co.  9 
Cush.  338,  57  Am.  Dec.  50;  Montgomery  <&  W.  Plank  Road  Co. 
v.  Well,  27  Ala.  618. 

In  criminal  law  as  in  civil  cases,  a  fact  continuous  in  its 
character  and  nature  is  presumed  to  continue.  li  dints  v. 
Earle,  44  N.  Y.  172,  3  Am.  Rep.  655;  Poe  v.  Dorrah,  iJ'»  Ala. 
289,  56  Am.  Dec.  196;  Magee  v.  Scott,  9  Cush.  lis,  55  Am.  Dec. 
49;  Smith  v.  New  York  Cod.  11.  Co.  13  Barb.  225;  Eames  v. 
Eames,  supra/  Graves  v.  State,  12  \Vi>.  593;  Laughlin  v.  Chi- 
cago <%  N  W.  12.  Co.  28  Wis.  204,  9  Am.  Rep.  493;  Farr  v. 
Payne,  40  Vt.  615.     It  must  be  remembered  that  all  presump- 


28  LAW    OF   EVIDENCE   IN    CRIMINAL   CASES. 

tions  of  every  name  and  nature  are  accorded  legal  indulgence 
merely  to  supply  the  place  of  facts  that  are  supposed  to  exists 
but  they  arc  utterly  impotent,  and  worthless  as  against  an  estab- 
lished  fact.  Fresh  v.  Gilson,  41  U.  S.  16  Pet.  327,  10  L.  ed.  982; 
Lincoln  v.  French,  105  IT.  S.  614,  26  L.  ed.  1189;  Best,  Presump- 
tions, §  136;  Smith  v.  New  York  Cent.  R.  Co.  43  Barb.  225. 

It  is  only  when  insanity  of  a  chronic  or  permanent  nature  is- 
proved  that  its  continuous  existence  is  presumed.  No  such  pre- 
sumption  arises  where  fitful  and  exceptional  attacks  of  insanity 
are  proved;  and  where  an  insane  person  has  lucid  intervals,  an 
offense  by  him  is  presumed  to  have  been  committed  during  a 
lucid  interval,  unless  the  contrary  appears. 

An  ordinary  witness  may  testify  to  the  sanity  or  insanity  of  a. 
person  with  whom  he  is  intimately  acquainted.  If  expressing 
the  opinion  that  such  person  is  of  unsound  mind,  he  should  state 
the  facts  on  which  such  opinion  is  founded;  but  when  he  testifies- 
that  such  person  is  sane,  this  is  not  necessary,  since  a  sane  person- 
would  not  manifest  any  such  eccentricities  as  usually  mark 
the  conduct  of  person  of  unsound  mind.  Ford  v.  State,  71  Ala„ 
385. 

§  22.  Presumption  of  Guilt  Arising  from  Silence  and  Con- 
duct Generally. — In  almost  every  criminal  case  a  portion  of  the 
evidence  laid  before  the  jury  consists  of  the  conduct  of  the  party 
at  the  time  of,  or  after  being  charged  with,  the  offense.  Thus  it 
is  frequently  proved  that  upon  being  charged  he  fled,  or  endeav- 
ored to  make  his  escape.  Upon  this  proof  it  is  said  by  Smith,  B., 
that  he  had  the  authority  of  the  law  to  say,  that  though  a  man 
charged  with  an  offense  should  fly,  that  is  not  conclusive  evidence 
of  guilt.  The  jury  could  not  forget  that  one  of  the  oaths  they 
had  taken  was,  whether  the  prisoner  had  fled  in  consequence  of 
the  charge  made  on  him;  but  though  it  should  be  established  that 
he  fled  in  consequence  of  the  charge,  yet  it  did  not  follow  of 
necessity  that  he  was  guilty  of  the  murder;  though  it  was  a  cir- 
cumstance materially  unfavorable  and  suspicious.  Crawley's  Case, 
cited  in  M'Nally,  Crim.  Ev.  577.  The  introduction  of  a  false- 
hood into  the  defense  is  also  a  presumption  against  a  prisoner. 
This  presumption  is  heightened  if  the  falsehood  is  to  be  support- 
ed, a-  ir  almost  necessarily  must  be,  by  a  witness  conscious  of  it. 
:<'.v  Case,  1789,  cited  in  Gilbert,  Ev.  (Loft,  ed.)  898; 
M'Nally,   Ev.    580.     ."No   presumption  of  guilt  arises  from   the 


PKESUMPTIONS.  29 

silence  of  a  prisoner  when,  on  his  examination  before  a  magistrate, 
he  is  charged  by  another  prisoner  with  having  been  joined  in  the 
•commission  of  the  offense.     Rex  v.  Appleby,  3  Starkie,  33. 

In  weighing  the  effect  of  the  presumptive  evidence  furnished 
by  the  conduct  of  a  person  charged  with  the  criminal  offense, 
great  caution  should  be  exercised.  An  innocent  man  finding  him- 
self in  a  situation  of  difficulty,  and  perhaps  from  the  circumstances 
of  the  case,  of  danger,  is  sometimes  induced  to  adopt  a  line  of 
•conduct  which  bears  with  it  a  presumption  of  guilt.  2  Hale,  P.  C. 
290n. 

"Flight  may  be  very  strong  evidence  of  guilt,  or  it  may  weigh 
nothing,  according  to  the  circumstances  under  which  it  takes 
place.  The  legal  presumption  from  flight  is  against  the  prisoner, 
and  it  lies  upon  him  to  rebut  it."  Fox,  J.,  Chapman's  Trial 
(Pamphl.)  p.  213;  Fanning  v.  State,  14  Mo.  386. 

So  the  destruction,  supjiression,  withholding  or  fabrication  of 
•evidence  by  a  party,  creates  the  presumption  that  the  truth  is 
detrimental  to  his  interests.  Winchell  v.  Edwards,  57  111.  41. 
And  reasoning  from  analogy  we  have  the  further  proposition  that 
where  a  defendant  adopts  a  theory  of  defense  which  is  false,  and 
which  he  must  have  known  to  be  false,  it  is  not  error  for  the 
court  to  instruct  the  jury,  that  if  the  attempted  explanation  fails 
it  may  be  regarded  as  indicative  of  his  guilt.  Pilger  v.  Com.  112 
Pa.  220.  And  "a  failure  to  produce  proof,  when  in  the  power  of 
the  party,  is  recognized,  even  in  criminal  cases,  as  proper  to  be 
•considered  by  the  jury."     State  v.  Ward,  61  Vt.  153. 

The  rule  which  imposes  upon  a  suspect  the  obligation  of  pro- 
ducing evidence,  which  will  contradict  or  explain  circumstantial 
•evidence  against  him,  requires  him  to  do  so  only  when  he  is 
pressed  by  circumstantial  proof,  having  it  in  his  power  to  destroy 
its  apparent  force.  1  Cowen  &  Hill's  Notes,  310,  and  cases  there 
eited;  1  Starkie,  Ev.  34;  3  Starkie,  Ev.  487.  Before  the  absence 
of  evidence  can  affect  the  accused,  it  must  appear  that  there  is 
evidence  that  would  elucidate  the  matter  in  dispute,  and  that  it  is 
peculiarly  within  the  knowledge  of  the  accused;  and  then  if  he  is 
pressed  by  the  force  of  circumstantial  evidence  and  does  not  pro- 
duce the  evidence  within  his  power,  it  may  afford  a  strong  pre- 
sumption against  him.     People  v.  Mc  Whorter,  4  Barb.  438. 

Of  similar  import  is  the  language  of  Judge  Barnard,  who  in 
writing  for  affirmance  in  a  criminal  case  decided  30  years  later, 


30  LAW    OF   EVIDENCE   IN    CRIMINAL   CASES. 

employs  the  following  language:  "When  a  man  has  evidence  at 
hand,  by  which  he  could  prove  a  given  fact  material  to  his  defense,. 
and  docs  not  use  it,  it  was  for  the  jury  to  say  whether  it  should 
be  considered  against  him  or  not."  And  generally  we  may  affirm, 
that  where  the  guilt  of  the  accused  depends  upon  the  credibility 
of  evidence  given  by  an  accomplice,  it  is  no  error  to  charge  the 
jury  that  they  might  take  into  consideration  the  omission  of  the 
prisoner  to  contradict  the  accomplice  upon  a  statement  in  respect 
to  winch,  if  false,  contradictory  evidence  was  apparently  within 
the  prisoner's  power.     People  v.  Dyle,  21  N.  Y.  578. 

The  silence  of  a  defendant  when  he  should  have  spoken  cannot 
be  taken  to  be  an  admission  unless  it  is  proved  that  he  heard  the 
statement  which  he  should  have  denied.  People  v.  Ilolfelder,  5- 
X.  Y.  (  rim.  Rep.  179.  And  this  rule  is  of  doubtful  propriety  in 
any  event  obviously  if  the  silence  of  a  witness  can  be  treated  as- 
evidence  against  a  party  who  cannot  compel  him  to  answer,  it 
would  not  be  difficult  to  make  out  a  case  against  anyone  on  mere 
insinuations.  It  is  the  duty  of  the  court  to  caution  the  jury 
against  this.     People  v.  Hall,  IS  Mich.  4:82,  42  Am.  Rep.  177. 

§  23.  Presumption  of  Natural  Consequences  of  Act.— In 
Starkie  on  Evidence  it  is  said,  "that  a  rational  agent  must  be  taken 
to  contemplate  and  intend  the  natural  and  immediate  conse- 
quences of  his  own  act,  is  a  presumption  so  cogent  as  to  constitute 
rather  a  rule  of  law  than  of  mere  evidence1'  (p.  818).  "There  is- 
a  general  presumption  in  criminal  matters  that  a  person  intends 
whatever  is  the  natural  and  probable  consequences  of  his  own 
actions."  1  Phil.  Ev.  032.  It  was  said  by  Judge  Andrews,  that 
"  it  is  a  fundamental  rule  of  evidence  of  very  general  application, 
founded  upon  observation  and  experience,  that  a  man  is  presumed 
to  intend  the  natural  consequences  of  his  act."  People  v.  Convoy, 
97  N.  Y.  62. 

It  follows  from  this  presumption,  that  a  criminal  intent  is  pre- 
sumed from  the  commission  of  a  criminal  act.  K.  lr.  Penal 
Code,  §  17. 

i.  Statutory  Law  of  California  on  the  Subject.— Three 

sections  of  the  California  Code  of  Civil  Procedure  embody  the 
most  exhaustive  resume  of  authority,  and  reflect  so  faithfully  the 
present  attitude  of  the  law  regarding  this  somewhat  extended 
topic,  that  a  failure  to  reproduce  the  salient  features  they  embody 
would  argue  gross  neglect  of  the  subject.     As  a  monumental  ex- 


PRESUMPTIONS.  3L 

hibit  of  condensation  they  will  attract  attention,  and  as  an  epi- 
grammatic statement  of  statutory  law  they  are  of  ideal  excellence 
and  singularly  pertinent  in  their  relations  to  the  law  of  criminal 
evidence  throughout  the  Federal  union. 

The  following  extract  is  from  part  4,  California  Code  of  Civil 
Procedure,  title  "Evidence — Inferences  and  Presumptions,"' 
chap.  5. 

When  Presumptions  may  be  controverted — §  1001.  "A  pre- 
sumption (unless  declared  by  law  to  be  conclusive)  may  be  con- 
troverted by  other  evidence,  direct  or  indirect;  but  unless  so  con- 
troverted, the  jury  are  bound  to  h'nd  according  to  the  presump- 
tions." 

What  Presumptions  are  conclusive. — §  1002.  "  The  following 
presumptions  and  no  others  are  deemed  conclusive: 

"1.  A  malicious  and  guilty  intent,  from  the  deliberate  commis- 
sion of  a  unlawful  act,  for  the  purpose  of  injuring  another; 

"2.  The  truth  of  the  facts  recited,  from  a  recital  in  a  written 
instrument  between  the  parties  thereto,  or  their  successors  in  in- 
terest by  a  subsequent  title;  but  this  rule  does  not  apply  to  the 
recital  of  a  consideration; 

"3.  Whenever  a  party  has,  by  his  own  declaration,  act  or  omis- 
sion, intentionally  and  deliberately  led  another  to  believe  a  partic- 
ular thing  true,  and  to  act  upon  such  belief,  he  cannot,  in  any 
litigation  arising  out  of  such  declaration,  act  or  omission,  be  per- 
mitted to  falsify  it; 

"4.  A  tenant  is  not  permitted  to  deny  the  title  of  his  landlord. 
at  the  time  of  the  commencement  of  the  relation; 

"5.  The  issue  of  a  wife  cohabiting  with  her  husband,  who  is 
not  impotent,  is  indisputably  presumed  to  be  legitimate; 

"0.  The  judgment  or  order  of  a  court,  when  declared  by  this 
Code  to  be  conclusive;  but  such  judgment  or  order  must  be 
alleged  in  the  pleadings,  if  there  lie  an  opportunity  to  do  so;  if 
there  be  no  such  opportunity,  the  judgment  or  order  may  be  used 
as  evidence; 

"7.  Any  other  presumption  which  by  statute  is  expressly  made 
conclusive." 

What  presumptions  may  be  controverted;  extended  tabulation 
of  these  instances. — §1003.  "All  other  presumptions  are  satis- 
factory, if  uncontradicted.  They  arc  denominated  disputable  pre- 
sumptions, and  may  be  controverted  by  other  evidence.  The 
following;  are  of  that  kind: 


.32  LAW    OF    EVIDENCE    IN   CRIMINAL    CASES. 

"1.  That  a  person  is  innocent  of  crime  or  wrong; 

"2.  That  an  unlawful  act  was  done  with  an  unlawful  intent; 

"3.  That  a  person  intends  the  ordinary  consequences  of  his  vol- 
untary act; 

"4.  That  a  person  takes  ordinary  care  of  his  own  concern; 

"5.  That  evidence  willfully  suppressed  would  be  adverse  if  pro- 
duced; 

"6.  That  higher  evidence  would  be  adverse  from  inferior,  being 
produced; 

"7.  That  money  paid  by  one  to  another  was  due  the  latter; 

"8.  That  a  thing  delivered  by  one  to  another  was  due  the  latter. 

"9.  That  an  obligation  delivered  up  to  the  debtor  has  been 
paid; 

"10.  That  former  rent  or  installments  have  been  paid  when  a 
receipt  for  the  latter  is  produced; 

"11.  That  things  which  a  person  possesses  are  owned  by  him; 

"12.  That  a  person  is  the  owner  of  property  from  exercising 
acts  of  ownership  over  it,  or  from  common  reputation  of  his  own- 
ership; 

"13.  That  a  person  is  possessed  of  any  order  on  himself  for  the 
payment  of  money,  or  the  delivery  of  a  thing,  has  paid  the  money 
or  delivered  the  thing  accordingly; 

"14.  That  a  person  acting  in  a  public  office  was  regularly  ap- 
pointed to  it; 

"15.  That  official  duty  has  been  regularly  performed; 

"16.  That  a  court  or  judge,  acting  as  such,  whether  in  this  state 
or  in  any  other  state  or  country,  was  acting  in  the  lawful  exercise 
of  his  lawful  jurisdiction; 

"17.  That  a  judicial  record,  when  not  conclusive,  does  still  cor- 
rectly determine  or  set  forth  the  rights  of  the  parties; 

"18.  That  all  matters  within  an  issue  are  laid  before  the  jury 
and  passed  upon  by  them,  and,  in  like  manner,  that  all  matters 
within  a  submission  to  arbitration  were  laid  before  the  arbitrator 
and  passed  upon  by  him; 

"19.  That  private  transactions  have  been  fair  and  regular; 

"20.  That  the  ordinary  course  of  business  has  been  followed; 

"21.  That  a  promissory  note  or  bill  of  exchange  was  given  or 
endorsed  for  a  sufficient  consideration; 

"22.  That  an  endorsement  of  a  negotiable  promissory  note  or 
bill  of  exchange  was  made  at  the  time  and  place  of  making  the 
note  or  bill; 


PKESUMPTIONS.  ,  33 

"23.  That  a  writing  is  truly  dated; 

"24.  That  a  letter  duly  directed  and  mailed  was  received  in  the 
regular  course  of  the  mail; 

"25.  Identity  of  person  from  identity  of  name; 

"26.  That  a  person  not  heard  from  in  seven  years  is  dead; 

"27.  That  acquiescence  followed  from  a  belief  that  the  thing 
acquiesced  in  was  conformable  to  the  right  or  fact; 

"28.  That  things  have  happened  according  to  the  ordinary 
course  of  nature  and  the  ordinary  habits  of  life; 

"29.  That  persons  acting  as  copartners  have  entered  into  a  con- 
tract of  copartnership; 

"30.  That  a  man  and  woman  deporting  themselves  as  husband 
and  wife  have  entered  into  a  lawful  contract  of  marriage; 

"31.  That  a  child  born  in  lawful  wedlock,  there  being  no  di- 
vorce from  bed  and  board,  is  legitimate; 

"32.  That  a  thing  once  proved  to  exist  continues  as  long  as  is 
usual  with  things  of  that  nature; 

"33.  That  the  law  has  been  obeyed; 

"34.  That  a  document  or  writing  more  than  thirty  years  old  is 
genuine,  when  the  same  has  been  since  generally  acted  upon  as 
genuine  by  persons  having  an  interest  in  the  question,  and  its 
custody  has  been  satisfactorily  explained; 

"35.  That  a  printed  and  published  book  purporting  to  be 
printed  or  published  by  the  public  authority  was  so  printed  or 
published; 

"36.  That  a  printed  and  published  book  purporting  to  contain 
reports  of  cases  adjudged  in  the  tribunals  of  the  state  or  country 
where  the  book  is  published,  contains  correct  reports  of  such 
cases; 

"37.  That  a  trustee  or  other  person,  whose  duty  it  was  to  con- 
vey real  property  to  a  particular  person,  has  actually  conveyed  to 
him,  when  such  presumption  is  necessary  to  perfect  the  title  of 
such  person  or  his  successor  in  interest; 

"38.  The  uninterrupted  use  by  the  public  of  land  for  a  burial 
ground  for  five  years,  with  the  consent  of  the  owner,  and  without 
a  reservation  of  his  right,  is  presumptive  evidence  of  his  intention 
to  dedicate  it  to  the  public  for  that  purpose; 

"39.  That  there  was  a  good  and  sufficient  consideration  for  a 
written  contract; 

"40.  "When  two  persons  perish  in  the  same  calamity,  such  as  a 
3 


34  LAW    OF   EVIDENCE   IN   CRIMINAL   CASES. 

wreck,  a  battle  or  conflagration,  and  it  is  not  shown  who  died 
first,  and  there  are  no  particular  circumstances  from  which  it  can 
be  inferred,  survivorship  is  presumed  from  the  probabilities  re- 
sulting from  the  strength,  age,  sex,  according  to  the  following 
rules: 

"41.  If  both  of  those  who  have  perished  were  under  the  age  of 
fifteen  years,  the  older  is  presumed  to  have  survived; 

"42.  If  both  were  above  the  age  of  sixty,  the  younger  is  pre- 
sumed to  have  survived; 

"43.  If  one  be  under  fifteen,  and  the  other  above  sixty,  the 
former  is  presumed  to  have  survived; 

"44.  If  both  be  over  fifteen  and  under  sixty,  and  sexes  be  dif- 
ferent, the  male  is  presumed  to  have  survived;  if  the  sexes  be  the 
same,  then  the  older; 

"45.  If  one  be  under  fifteen  or  over  sixty,  and  the  other  be- 
tween those  ages,  the  latter  is  presumed  to  have  survived." 

For  an  elaborate  consideration  of  this  topic,  see  1  Kice,  Civil- 
Evidence,  chap.  3. 


CHAPTER  IT. 

PRIMA  FACIE  EVIDENCE. 

§  25.  Term  Defined. 
2G.  Case  Made  by. 
27.  Legislature  may  Declare  the  Effect  of. 

§  25.  Term  Defined. — Prima  facie  evidence  is  such  evidence 
as  in  judgment  of  the  law  is  sufficient  to  establish  the  fact,  and,  if 
not  rebutted,  remains  sufficient  for  that  purpose  (KeMy  v.  Jack- 
son, 31  D.  S.  6  Pet.  632,  8  L.  ed.  526;  LilienihaVs  Tobacco  v. 
United  States,  97  TJ.  S.  26S,  24  L.  ed.  905);  evidence  which, 
standing  alone  and  unexplained,  would  maintain  the  proposition 
and  warrant  the  conclusion  to  support  which  it  is  introduced 
{Emmons  v.  Westfield  Bank,  97  Mass.  243);  that  which  suffices 
for  the  proof  of  a  particular  fact  until  contradicted  and  overcome 
by  other  evidence.  Cal.  Code,  Civ.  Proc.  §  1833;  Swamp  Land 
Dist.  v.  Gwynn,  70  Cal.  570.  See  Anderson,  Law  Diet,  title 
Prima  Facie  Evidence. 

Prima  facie  evidence  is  that  which,  not  being  inconsistent  with 
the  falsity  of  the  hypothesis,  nevertheless  raises  such  a  degree  of 
probability  in  its  favor  that  it  must  prevail  if  it  be  accredited  by 
the  jury,  unless  it  be  rebutted,  or  the  contrary  proved.  Conclu- 
sive evidence,  on  the  other  hand,  is  that  which  excludes,  or  at 
least  tends  to  exclude,  the  possibility  of  the  truth  of  any  other 
hypothesis  than  the  one  attempted  to  be  established.  1  Starkie, 
Ev.  479. 

As  defined  by  the  United  States  Supreme  Court,  prima  facie 
evidence  of  a  fact  is  such  evidence  as  in  judgment  of  law  is 
sufficient  to  establish  the  fact,  and  remain  sufficient  for  that  pur- 
pose if  not  rebutted.  The  jury  are  bound  to  consider  it  in  that 
light,  and  the  court  will  set  aside  their  verdict  and  grant  a  new 
trial  if  without  any  rebutting  evidence  they  disregard  it.  In  a 
legal  sense,  such  prima  facie  evidence,  in  the  absence  of  all  con- 
trolling evidence,  of  discrediting  circumstances,  becomes  con- 
clusive; that  is,  it  should  operate  in  the  minds  of  the  jury  as 
decisive  to  found  their  verdict  as  to  the  fact.     Crane  v.  Morris^ 

35 


36  LAW    OF    EVIDENCE    IN    CRIMINAL    CASES. 

31  TJ.  S.  6  Pet.  598,  8  L.  cd.  514;  United  States  v.  Wiggins,  39  U. 
S.  14  Pet.  334,  10  L.  ed.  481. 

Mr.  Justice  Story's  definition  is  scarcely  less  logical  and  satis- 
factory. He  says  :  "  It  is  such  that  in  judgment  of  law  is  suffi- 
cient to  establish  the  fact;  and  if  not  rebutted,  remains  sufficient 
for  the  purpose.  The  jury  are  bound  to  consider  it  in  that  light, 
unless  they  are  invested  with  authority  to  disregard  the  rules  of 
evidence,  by  which  the  liberty  and  estate  of  every  citizen  are 
guarded  and  supported.  No  judge  would  hesitate  to  set  aside 
their  verdict,  and  grant  a  new  trial,  if,  under  such  circumstances, 
without  any  rebutting  evidence,  they  disregarded  it.  It  would  be 
error  on  their  part,  which  would  require  the  remedial  interposi- 
tion of  the  court.  In  a  legal  sense,  then,  such  prima  facie  evi- 
dence, in  the  absence  of  all  controlling  evidence  or  discrediting 
circumstances,  becomes  conclusive  of  the  fact;  that  is,  it  should 
operate  upon  the  minds  of  the  jury  as  decisive  to  found  their  ver- 
dict as  to  the  fact.  Such  was  understood  to  be  the  clear  prin- 
ciples of  law  on  the  subject."  Kelly  v.  Jackson,  31  U.  S.  6  Pet. 
622,  8  L.  ed.  523. 

A  consideration  for  this  topic  becomes  necessary  when  the 
principles  that  characterize  the  affirmative  of  the  issue  are  recalled. 
A  party  litigant,  upon  whom  is  cast  the  onus  probandi,  in  order 
to  comply  with  certain  well  recognized  principles  of  law,  intro- 
duces in  support  of  the  averment  of  his  declaration  certain  evi- 
dence. Thus,  in  an  action  to  determine  the  liability  on  a 
promissory  note,  the  plaintiff  usually  declares  and  incorporates  in 
affirmation  of  his  claim  statements  to  the  effect  that  the  defend- 
ant made,  executed  and  delivered  the  note  in  suit;  that  the 
complainant  became,  in  the  due  course  of  business,  the  holder  and 
owner  thereof  for  value,  before  maturity;  that  the  same  is  due 
and  unpaid;  and  that  payment  has  been  demanded  and  refused. 
This  constitutes  a  prima  facie  case,  on  producing  the  note,  which 
is  usually  then  offered  in  evidence,  and  the  plaintiff  rests.  The 
burden  of  proof  is  then  shifted. 

This  mercurial  nature  of  the  burden  of  proof,  and  many  illus- 
trations of  the  peculiar  province  prima  facie  evidence  sustains  in 
the  actual  trial  of  a  case  are  afforded  by  a  close  examination  of 
that  topic.  It  would  involve  a  technical  inaccuracy,  perhaps,  but 
would  thoroughly  accord  with  the  actual  facts,  as  seen  and 
developed  in  our  trial  court,  were  I  to  postulate  for  prima  facie 


PRIMA    FACIE    EVIDENCE.  37 

evidence  this  characteristic,  viz:  "  Whenever  the  burden  of 
proof  devolves  upon  any  party  other  than  the  one  originally  holding 
the  affirmative,  then  and  in  that  event,  prima  facie  evidence  has 
been  established,  and  if  no  other  evidence  were  offered,  each 
party  would  be  entitled  to  judgment." 

Mr.  Best  is  singularly  infelicitous  in  his  attempt  at  a  definition. 
He  says :  "  Strong  presumptions  of  fact  shift  the  burden  of 
proof,  even  though  the  evidence  to  rebut  them  involve  the  proof 
of  a  negative.  The  evidentiary  fact  giving  rise  to  such  a  pre- 
sumption is  said  to  be  'prima  facie  evidence '  or  the  principal  fact 
of  which  it  is  evidentiary.  Thus,  possession  is  prima  facie  evi- 
dence of  property;  and  the  recent  possession  of  stolen  goods  is 
sufficient  to  call  on  the  accused  to  show  how  he  came  by  them, 
and  in  the  event  of  his  not  doing  so  satisfactorily,  to  justify  the 
conclusion  that  he  is  the  thief  who  stole  them."  Best,  Ev.  §  321, 
citing  Gilbert,  Ev.  (4th  ed.)  157. 

§  26.  Case  Made  by. — The  party  upon  whom  the  onus jprohandi 
rests,  can  make  out  a  prima  facie  case,  and  close  the  evidence. 
The  defense  is  not  required  to  offer  any  evidence  until  the  prose- 
cution has  made  out  a  case  sufficient  to  support  a  verdict;  and 
when  the  prosecution  has  closed,  the  defendant  is  entitled  to  an 
acquittal  if  the  case  of  the  prosecution  is  not  made  out  beyond  a 
reasonable  doubt.  If  the  prisoner  thinks  it  necessary  to  offer 
proof  independent  of  what  has  appeared  from  the  prosecution,  he 
does  not  necessarily  assume  the  burden  of  proof;  it  is  simply 
offering  rebutting  testimony,  which  may  be  sufficient  or  not. 
The  defendant  all  the  time  has  the  presumption  of  innocence, 
which  is  a  substantial  rule,  operating  during  the  whole  trial,  and 
continuing  to  operate  until  the  case  is  finally  determined.  But 
because  the  defendant  considers  it  necessary  to  rebut,  is  no  reason 
why  the  law  should  raise  a  presumption  of  guilt,  and  thereby 
destroy  the  presumption  of  innocence,  by  evidence  amounting  to 
proof  of  innocence.  Malone,  Criminal  Briefs,  p.  250;  Wharton 
v.  State,  73  Ala.  3G6;  Guffu  v.  State,  8  Tex.  App.  187;  State  v. 
Wingo,  m  Mo.  181,  27  Am.  Kep.  320;  Jones  v.  State,  13  Tex. 
App.  1;  Williams  v.  Peojple,  101  111.  382;  State  Y.Payne,  86  X. 
C.  609. 

— It  is  the  province  of  the  judge  to  determine  whether  there  is 
testimony  sufficient  to  make  it  appear,  prima  facie,  that  a  crime 
has  been  committed.    The  evidence  on  which  the  judge  act-  may 


38  LAW    OF    EVIDENCE    IN    CRIMINAL    CASES. 

not  necessarily  establish  the  corpus  delicti.  It  may  be,  and  often 
is,  conflicting  and  contradictory.  In  such  case,  the  credibility  of 
the  witnesses,  and  the  sufficiency  of  the  entire  evidence,  are  for 
the  ultimate  decision  of  the  jury.^"" 

§  27.  Legislature  may  Declare  the  Effect  of. — While  the 
legislature  may  establish  the  effect  of  certain  evidence  and  shift 
the  burden  of  proof  from  one  party  to  another,  and  declare  what 
may  be  presumptive  evidence  of  certain  facts,  it  has  not  the  power 
to  make  the  lawful  act  of  one  person  presumptive  evidence  of  the 
unlawful  act  of  another  without  any  proof  of  his  knowledge,  com- 
plicity or  consent.     See  New  York  Const,  art.  1,  §  6. 

It  has  been  repeatedly  decided  in  New  York,  that  the  legisla- 
ture has  the  right  to  declare  what  shall  be  presumptive  evidence 
of  any  fact.  Hand  v.  Ballou,  12  N.  Y.  543;  People  v.  Mitchell, 
45  Barb.  212;  H'tckox  v.  Tollman,  38  Barb.  608;  Donahue  v. 
O'Connor,  13  Jones  &  S.  297;  Howard  v.  Moot,  64  K  Y.  262,  5 
Thomp.  &  C.  93. 

Legislation  of  the  character  in  question,  as  to  rules  of  evidence 
is  not  without  precedent,  nor  is  its  validity  a  question  unadjudi- 
cated.  In  Com.  v.  Williams,  6  Gray,  1,  Williams  was  indicted 
and  convicted  for  being  a  common  seller  of  spirituous  and  intoxi- 
cating liquors.  The  statute  concerning  the  manufacture  and  sale 
of  spirituous  and  intoxicating  liquors,  under  which  the  indictment 
was  found,  provided,  among  other  things,  that  "delivery  in  or 
from  any  store,  shop,  warehouse,  steamboat  or  other  vessel,  or  any 
vehicle  of  any  kind,  or  any  building  or  place  other  than  a  dwelling 
house,  shall  be  deemed  prima  facie  evidence  of  a  sale." 

The  trial  judge  instructed  the  jury  that  the  delivery  by  the 
defendant  of  such  liquors  in  his  place  of  business,  the  same  not 
being  a  dwelling  house,  without  evidence  of  payment  therefor, 
was  prima  facie  evidence  of  sale  by  the  defendant,  unless 
explained  or  controlled  by  other  evidence.  It  was  contended, 
upon  appeal  by  the  supreme  court,  that  the  provision  was  uncon- 
stitutional, because  it  was  unreasonable,  contrary  to  the  rules  and 
principles  of  the  common  law,  an  encroachment  upon  the  judicial 
department,  and  subversive  to  the  right  of  trial  by  jury. 

The  court  held  the  statute  to  be  constitutional,  and  the  view 
taken  of  it  is  that  it  only  prescribes,  to  a  certain  extent  and  under 
particular  circumstances,  what  legal  effect  shall  be  given  to  a  par- 
ticular species  of  evidence,  if  it  stands  entirely  alone  and  is  left 


PRIMA   FACIE    EVIDENCE.  39 

wholly  unexplained,  that  this  evidence  neither  conclusively  deter- 
mines the  guilt  or  innocence  of  the  party  who  is  accused,  nor 
withdraws  from  the  jury  the  right  and  duty  of  passing  upon  and 
determining  the  issue  to  be  tried;  that  the  purpose  and  effect  of 
the  clause  of  the  statute  are  to  simply  give  a  certain  degree  of 
artificial  force  to  a  designated  fact  until  such  explanations  are 
afforded  as  to  show  that  it  is  at  least  doubtful  whether  this  pro- 
posed statutory  effect  ought  to  be  attributed  to  it,  but  the  fact 
itself  is  still  to  be  shown  and  established  by  proof  sufficient  to 
-convince  and  satisfy  the  minds  of  the  jurors,  and  if  ^this  proof  is 
furnished,  and  the  delivery  of  any  quantity  of  spirituous  liquor, 
in  a  place  other  than  a  dwelling  house,  is  fully  shown,  this  will 
not  be  conclusive  against  the  party  charged  with  having  made  the 
sale  of  it;  that  making  out  a  prima  facie  case  does  not  change  the 
burden  of  proof  but  is  only  the  result  of  that  amount  of  evidence 
which  is  sufficient  to  counterbalance  the  general  presumption  of 
innocence,  and  warrant  a  conviction,  if  the  fact  so  established  be 
not  encountered  and  controlled  by  other  evidence  tending  to 
modify  its  effect,  or  to  so  explain  it  as  to  render  the  statutory 
inference  from  it  too  uncertain  and  improbable  to  be  relied  upon; 
the  burden  remains  continuously  on  the  government  to  establish 
the  accusation  charged  in  the  indictment  or  information.  Com. 
v.  Kimball,  24  Pick.  373,  35  Am.  Dec.  326;  Com.  v.  MeKie,  1 
Gray,  61,  61  Am.  Dec.  410. 

In  Com.  v.  Wallace,  7  Gray,  222,  where  the  indictment  was  for 
an  unlawful  sale  of  spirituous  and  intoxicating  liquors,  it  was 
again  contended  that  the  provision  in  question  was  unconstitu- 
tional, and  applied  only  where  a  naked  delivery  was  proved  with- 
out any  accompanying  circumstances;  and  the  trial  judge  was 
requested,  inter  alia,  to  so  charge;  but  he  refused,  and  instructed 
the  jury  that,  if  there  was  proved  beyond  a  reasonable  doubt  a 
delivery  of  intoxicating  liquor  by  the  defendant  from  any  build- 
ing or  place  other  than  a  private  dwelling  house  or  its  dependen- 
cies, it  would  be  prima  facie  evidence  of  a  sale,  and  would  war- 
rant a  conviction,  but  that  the  circumstances  under  which  the 
delivery  was  made  might  rebut  the  presumption,  or  the  presump- 
tion might  be  rebutted  by  proof.  The  supreme  court  overruled 
the  exceptions  taken  to  the  instructions  given.  Com.  v.  Howe, 
14  Gray,  47,  maintains  the  same  doctrine,  and  that  the  burden 
is  on  the  government  to  prove  the  sale  beyond  a  reasonable  doubt* 
See  also  Holmes  v.  Htmt,  122  Mass.  505,  23  Am.  Rep.  381. 


40  LAW    OF    EVIDENCE    IN    CRIMINAL   CASES. 

A  statute  of  Maine  provided  that  whenever  an  unlawful  sale  of 
intoxicating  liquor  is  alleged,  and  delivery  proved,  it  shall  not  be 
necessary  to  prove  a  payment,  but  such  delivery  shall  be  "suffi- 
cient evidence  of  sale."  This  provision  was  held  to  be  constitu- 
tional. "Delivery,  in  the  absence  of  all  other  proof,"  says  the 
court,  "is  made  sufficient  evidence  of  sale — sufficient  when  no 
other  proof  is  offered.  It  is  open  to  disproof  from  every  source. 
It  may  be  explained  by  attendant  circumstances.  The  party 
delivering  is  not  estopped  by  the  fact  of  delivery. 
The  fact  of  delivery  is  deemed  sufficient,  if  not  explained  by  the 
circumstances  accompanying  the  delivery,  or  if  the  inference  is 
not  negatived  by  disproof."     State  v.  Hurley,  54  Me.  562. 


CHAPTER  V. 

BEST  AND  SECONDARY  EVIDENCE. 

§  28.  CJiaraci 'eristics  of  Best  and  Secondary  Evidence. 

29.  Foundation  for  Secondary  Evidence. 

30.  Relaxation  of  the  Rule  in  Certain  Cases. 

31.  Notice  to  Produce. 

§  28.  Characteristics  of  Best  and  Secondary  Evidence. — 

One  dominant  law  of  evidence  that  is  without  relaxation  and  at 
all  times  in  the  ascendency,  is  that  demanding  the  best  attainable 
evidence  of  which  the  case  is  susceptible.  Bench,  bar  and  com- 
mentator are  alike  agreed  upon  this  postulate,  and  it  is  enforced 
with  precision,  both  in  this  country  and  in  England.  The  United 
States  Supreme  Court,  through  Mr.  Justice  Nelson,  delineates  the 
rule  with  admirable  lucidity.  In  a  case  that  is  still  quoted  with 
approbation,  and  as  a  pertinent  exposition  of  the  subject  under 
review,  an  excerpt  from  the  opinion  is  inserted: 

"One  of  the  general  rules  of  evidence,  of  universal  application, 
is  that  the  best  evidence  of  disputed  facts  must  be  produced  of 
which  the  nature  of  the  case  will  admit.  This  rule,  speaking 
technically,  applies  only  to  the  distinction  between  primary  and 
secondary  evidence;  but  the  reason  assigned  for  the  application 
of  the  rule  in  the  technical  sense  is  equally  applicable,  and  is  fre- 
quently applied,  to  the  distinction  between  the  higher  and  inferior 
degree  of  proof,  speaking  in  a  more  general  and  enlarged  sense 
of  the  terms,  when  tendered  as  evidence  of  a  fact.  The  meaning 
of  the  rule  is,  not  that  courts  require  the  strongest  possible  assur- 
ance of  the  matters  in  question,  but  that  no  evidence  shall  be 
admitted,  which,  from  the  nature  of  the  case,  supposes  still  greater 
evidence  behind  in  the  party's  possession  or  power;  because  the 
absence  of  the  primary  evidence  raises  a  presumption,  that,  if 
produced,  would  give  a  complexion  to  the  case  at  least  unfavor- 
able, if  not  directly  adverse,  to  the  interest  of  the  party."  Clif- 
ton v.  United  States,  45  U.  S.  4  How.  242,  11  L.  ed.  957. 

On  prior  and  on  subsequent  occasions  the  same  court  lias  an- 
nounced a  similar  principle,  and  we  may  safely  affirm  that  it  is  a 

41 


42  LAW    OF   EVIDENCE   IN   CRIMINAL   CASES. 

cardinal  feature  of  evidentiary  law  as  administered  in  this  country. 
No  evidence  shall  be  received,  which  presupposes  better  evidence 
in  the  party's  possession,  and  this  rule  may  be  regarded  as  estab- 
lished beyond  question.  Tayloe  v.  Biggs,  26  U.  S.  1  Pet.  591,  7 
L.  ed.  275;  Cooke  v.  Woodrow,  9  U.  S.  5  Cranch,  13,  3  L.  ed.  22; 
Fresh  v.  Oilson,  41  U.  S.  16  Pet.  327,  10  L.  ed.  982;  DeLcme  v. 
Moore,  55  U.  S.  14  How.  253,  14  L.  ed.  409;  MePhaul  v.  Laps- 
ley,  87  TJ.  S.  20  Wall.  264,  22  L.  ed.  344. 

The  rule  that  the  best  evidence  must  be  produced  which  the 
nature  of  the  case  admits,  means,  not  that  the  courts  require  the 
strongest  possible  assurance,  but  that  no  evidence  shall  be  admit- 
ted which  presupposes  greater  evidence  in  the  party's  favor. 
United  States  v.  Beyburn,  3]  TJ.  S.  6  Pet.  352,  8  L.  ed.  424. 

The  reason  of  the  rule  that  secondary  or  inferior  evidence  shall 
not  be  substituted  for  any  evidence  of  a  higher  nature  which  the 
case  admits  of,  is  that  the  attempt  to  substitute  the  inferior  for 
the  higher  implies  that  the  higher  would  give  a  different  aspect 
to  the  case  of  the  party  introducing  the  lesser.  United  States  v. 
Wood,  39  TJ.  S.  14  Pet.  430,  10  L.  ed.  527;  Tayloe  v.  Biggs,  26 
TJ.  S.  1  Pet.  591,  7  L.  ed.  275;  Clifton  v.  United  States,  45  TJ.  S. 
4  How.  242,  11  L.  ed.  957;  DeLane  v.  Moore,  55  U.  S.  14  How. 
253,  14  L.  ed.  409.  The  reasons  calling  for  the  production  of  the 
best  evidence  of  which  the  case  is  susceptible  in  civil  cases,  are  of 
equal  weight  and  cogency  in  criminal  prosecutions.  Chief  Justice 
Parsons  in  a  criminal  case  decided  in  1808,  sententiously  an- 
nounces the  rule  in  the  following  language:  "It  is  an  indispensable 
rule  of  law,  that  evidence  of  an  inferior  nature,  which  supposes 
evidence  of  a  higher  in  existence,  and  which  may  be  had,  shall 
not  be  admitted."     Com.  v.  Kinison,  4  Mass.  646. 

§  29.  Foundation  for  Secondary  Evidence. — In  accounting 
for  the  absence  of  a  writing  material  to  the  case,  so  as  to  let  in 
secondary  evidence  of  its  contents,  no  universal  rule  can  be  de- 
clared which  will  be  applicable  under  all  circumstances.  The 
testimony  is  addressed  to  the  presiding  judge,  and  he  pronounces 
on  its  sufficiency.  He  must  be  reasonably  convinced  that  it  has 
been  destroyed,  is  lost,  or  is  beyond  the  reach  of  the  court's  pro- 
cess. A  material  inquiry  in  such  cases  is,  whether  or  not  there 
was  a  probable  motive  for  withholding  this  highest  and  best  evi- 
dence. Whenever  the  court  is  able  to  answer  this  inquiry  in  the 
negative,  less  evidence  will  satisfy  its  conscience,  than  if  suspicious 


BEST   AND    SECONDARY  EVIDENCE.  43 

•circumstances  attended  the  transaction.  As  a  rale  there  must  be 
a  careful  search  at  the  place  at  which  it  was  last  known  to  be,  if 
its  place  of  custody  can  be  traced  or  remembered.  If  not,  then 
such  search  must  be  made  at  any  and  every  place  where  it  would 
likely  be  found.     Jernigan  v.  State,  81  Ala.  58. 

A  foundation  for  secondary  evidence  is  not  laid  by  the  state, 
by  showing  that  the  original  document  is  not  in  the  possession  of 
the  prosecuting  witness,  as  he  is  not  the  party  offering  the  evi- 
dence.    State  v.  Penny,  TO  Iowa,  190. 

Proof  must  be  given  of  the  exercise  of  reasonable  diligence  in 
the  effort  to  procure  the  original.  The  circumstances  must  be 
indeed  exceptional  which  would  warrant  the  assertion  that  the 
•efforts  of  the  plaintiff  in  this  case  to  produce  the  original  were 
reasonably  diligent.  Beaver  v.  Rice,  25  N.  C.  280;  Dickinson  v. 
Breeden,  25  111.  1S6;  Ralph  v.  Brown,  3  AVatts.  &  S.  395;  Shep- 
ardv.  Giddings,  22  Conn.  2S2;  Wood  v.  Cullen,  13  Minn.  391; 
Johnson  v.  Arnwine,  42  X.  J.  L.  451,  30  Am.  Rep.  527;  Floyd 
v.  Mintsey,  5  Rich.  L.  3G1;  Turner  v.  Yates,  57  U.  S.  16  How. 
14,  14  L.  ed.  824;  Simpson  v.  Ball,  70  U.  S.  3  Wall.  460;  18  L. 
ed.  265;  Blackburn  v.  Crawford,  70  U.  S.  3  Wall.  175,  IS  L.  ed. 
186;  Jackson  v.  Frier,  16  Johns.  193;  Taunton  Bank  v.  Richard- 
son, 5  Pick.  436;  Empire  Transp.  Co.  v.  Steele,  70  Pa.  1S8. 

Where  the  contents  of  an  instrument  alleged  to  have  been  de- 
stroyed are  sought  to  be  proved  by  oral  evidence  it  is  for  the 
court  to  determine  whether  the  evidence  establishes  the  destruc- 
tion, and  whether,  if  established,  the  destruction  was  not  intended 
to  injure  the  opposite  party  or  to  create  an  excuse  for  its  non- 
production.     Mason  v.  Libbey,  90  N.  Y.  683. 

It  is  a  sufficient  excuse  for  the  non-production  of  a  document 
to  trace  it  to  the  possession  of  one  interested  in  retaining  it,  and 
who,  were  he  subpoenaed  to  produce  it,  could  refuse  to  do  so,  on 
the  ground  that  it  would  tend  to  criminate  him.  Abbott,  Trial 
Brief,  §  452,  citing  United  States  v.  Reyburn,  31  U.  S.  6  Pet. 
352,  366,  S  L.  ed.  424,  429;  State  v.  Kimbrougli,  13  N.  C.  431. 

In  civil  cases  it  has  been  repeatedly  held  that  where  the  paper 
or  document  wanted  in  evidence  has  been  traced  to  the  possession 
of  a  certain  party,  that  party  must  be  produced  to  prove  its  loss, 
and  if  beyond  the  jurisdiction  of  the  court  his  testimony  must  be 
taken  by  deposition  or  a  reasonable  excuse  given  for  the  failure. 
It  must  also  appear  that  the  party  offering  secondary  evidence 


44  LAW    OF    EVIDENCE    IN    CRIMINAL    CASES. 

show  that  he  has  exercised  good  faith  and  reasonable  diligence  in- 
seeking  for  the  primary  evidence,  and  that  he  has  explored  with 
reasonable  fidelity  all  sources  of  information  the  case  would  nat- 
urally suggest.  Simpson  v.  Dall,  70  U.  S.  3  Wall.  460,  475, 18 
L.  ed.  265,  267;  Deaver  v.  Bice,  24  K  C.  280;  Parkins  v.  Cob- 
bitt,  1  Car.  &  P.  282;  Dickinson  v.  Breeden,  25  111.  186;  Turner 
v.  Yates,  57  U.  S.  16  How.  14,  14  L.  ed.  824;  Bunch  v.  Hurst, 
3  Desaus.  Eq.  273,  5  Am.  Dec.  551. 

§  30.  Relaxation  of  the  Rule  in  Certain  Cases. — Before  sec- 
ondary evidence  is  admissible  as  to  the  contents  of  a  lost  instru- 
ment, it  must  appear  that  due  search  was  made  for  the  same  in 
the  place  where  it  was  last  seen  or  where  it  is  most  likely  to  be 
found,  and  the  rigor  with  which  this  search  is  prosecuted  must 
be  proportioned  to  the  value  of  the  instrument  sought.  Slight 
proof  of  loss  is  sufficient  where  the  paper  is  of  a  transient  charac- 
ter such  as  a  monthly  receipt  for  a  gas  or  water  bill.  On  the 
other  hand  the  last  will  and  testament,  or  valuable  muniments  of 
title,  call  for  protracted  effort  in  the  way  of  search;  as  to  what 
constitutes  sufficient  search  in  each  instance  must  be  regarded  as 
a  question  for  the  trial  court,  to  be  determined  by  the  facts  dis- 
closed. 

The  rule  that  when  the  non-production  of  a  written  instrument 
is  satisfactorily  accounted  for,  secondary  evidence  of  its  existence 
and  contents  may  be  given,  is  applicable  to  criminal  as  well  as 
civil  suits.  United  States  v.  Beyburn,  31  U.  S.  6  Pet.  352,  365y 
S  L.  ed.  424,  429.  As  we  have  seen,  there  is  no  universal  rule  as 
to  the  necessary  foundation  for  the  introduction  of  secondary  evi- 
dence; but  the  presiding  judge  must  be  reasonably  satisfied  that 
the  document  is  lost,  destroyed  or  beyond  the  jurisdiction  of  the 
court.  When  no  probable  motive  appears  for  withholding  the 
document,  less  evidence  is  required  than  under  suspicious  circum- 
stances. Jernigan  v.  State,  81  Ala.  58;  Ilaun  v.  State,  13  Tex. 
App.  8^0,  44  Am.  Eep.  706. 

The  rule  excluding  secondary  evidence  does  not  apply  to  matter 
not  relevant  to  the  merits,  but  drawn  out  on  cross-examination  to 
test  the  temper  and  credibility  of  the  witness,  except  that  if  the 
contents  of  a  document  are  sought  to  be  used  to  discredit  or  con- 
tradict the  witness,  as  containing  his  own  statements  contrary 
to  his  testimony,  the  original,  not  a  copy,  must  be  produced. 
Abbott,  Trial  Brief,  §  436,  citing  Klein  v.  Bussell,  86  U.  S.  19 


BEST   AND    SECONDARY    EVIDENCE.  45 

Wall.  439,  464,  22  L.  ed.  110, 1 24;  Kalk  v.  Fielding,  50  Wis.  339; 
JSfewcomb  v.  Griswold,  24  N.  Y.  298;  Pratt  v.  Norton,  5  Thomp. 
&  C.  8;  JSTash  v.  .SWirf,  116  Mass.  237. 

§  31.  Notice  to  Produce. — Due  notice,  according  to  the  rules 
■of  evidence,  to  produce  papers  required  at  trial  must  be  given.  It 
may  occasionally  be  desirable  to  obtain  from  tlie  court  a  preliminary 
order  permitting  the  inspection,  before  trial,  of  something  in  the 
opposite  party's  possession.  For  example,  on  an  indictment  being 
found  for  sending  a  threatening  letter,  the  court,  on  the  defendant's 
motion,  ordered  the  letter  to  be  deposited  with  an  officer  of  the  court 
for  the  inspection  of  the  witnesses  for  the  defense.  In  case  of  a 
homicide  by  alleged  poisoning,  where  the  contents  of  the  deceased 
person's  stomach  were  in  the  possession  of  the  police,  having  been 
examined  by  experts  on  the  part  of  the  execution,  the  court,  on 
the  defendant's  application,  made  an  order  permitting  an  expert 
nominated  by  the  latter  to  examine  them  in  the  presence  of  the 
other  experts.  1  Bishop,  Crim.  Proc.  §§  959-959<?,  citing  Meg.  v. 
Barker,  1  Fost.  &  F.  320;  State  v.  Wisdom,  8  Port.  (Ala.)  511; 
■State  v.  Gurnee,  14  Kan.  Ill;  Rex  v.  Ilarrie,  6  Car.  &  P.  105; 
Meg.  v.  Spry,  3  Cox,  C.  C.  221;  Word  v.Oom.  3  Leigh,  743;  State 
James,  37  Conn.  355;  Fahay  v.  State,  25  Conn.  205. 

If  the  indictment  itself  alleges  that  the  accused  is  the  custodian 
of  the  document  needed  in  evidence  or  where  the  evidence  in  the 
case  shows  it  to  be  in  his  possession  or  in  that  of  an  accomplice 
who  refuses  to  produce  it  on  the  ground  of  its  criminating  tend- 
ency, the  state  is  not  obliged  to  give  notice  to  produce.  See 
Abbott,  Trial  Brief,  §  454,  citing  State  v.  Mayberry,  48  Me.  218; 
People  v.  Holbrook,  13  Johns.  90;  McGinn  is  v.  State,  24  Ind. 
500;  Com.  v.  Messenger,  1  Binn.  273,  2  Am.  Dec.  441;  Boll  ins 
v.  State,  21  Tex.  App.  148;  Howell  v.  Ruyck,  2  Abb.  App.  Dec. 
423;  Lawson  v.  Bachman,  81  1ST.  Y.  610;  State  v.  Parker,  1  D. 
Chip.  298,  11  Am.  Dec.  735;  State  v.  Gurnee,  14  Kan.  121; 
United  States  v.  Doebler,  1  Baldw.  519. 

Generally,  however,  where  the  prosecution  undertakes  to  show 
the  contents  of  a  criminating  document,  it  must  duly  serve  a 
notice  to  produce;  and  should  the  accused  neglect  to  furnish  the 
paper  or  document  required,  secondary  evidence  of  its  contents 
are  admissible  on  the  part  of  the  state.  McGinnis  v.  State,  24 
Ind.  500;  Armitage  v.  State,  13  Ind.  441. 

The  rule  that  the  calling  for  the  production  of  papers  and  in- 


46  LAW  OF   EVIDENCE   IN   CRIMINAL   CASES. 

specting  them  makes  them  evidence  does  not  obtain  'in  the  state 
of  New  York.  Abbott,  Trial  Brief,  89;  Kenny  v.  Van  Rom,  1 
Johns.  394;  Stalker  v.  Gaunt,  12  K  Y.  Legal  Obs.  132;  Sayer  v. 
Kitchen,  1  Esp.  210;  Carr  v.  Gale,  3  Woodb.  &  M.  38;  Austin, 
v.  Thompson,  45  K  H.  113;  Withers  v.  GUlespy,  7  Serg.  &  K 
14;  2  Phil.  Ev.  537;  Cbofe  v.  Bank  of  United  States,  3  Cranch,. 
C.  C.  50;  Wallar  v.  Stewart,  4  Cranch,  C.  C.  532;  Jordan  v. 
Wilkms,  2  Wash.  C.  C.  482;  Blake  v.  i?w.ss,  33  Me.  360;  Randel 
v.  Chesapeake  &  D.  Canal  Co.  1  Harr.  (Del.)  233;  Clark  v. 
Fletcher,  1  Allen,  53;  Long  v.  Drew,  114  Mass.  77;  Wooten  v. 
iVaZZ,  18  Ga.  609;  Anderson  v.  Boot,  8  Smedes  &  M.  362. 

Whatever  may  be  the  rule  as  to  the  right  of  the  party  produc- 
ing a  paper  upon  notice,  to  offer  it  in  evidence,  or  to  require  the 
party  calling  for  it  after  an  inspection  to  put  it  in  evidence,  it  has 
never  been  claimed  that  evidence  which  is  utterly  immaterial 
could  be,  or  be  required  to  be,  put  in.  Abbott,  Trial  Brief,  89; 
~\Yilson  v.  Bowie,  1  Car.  &  P.  10;  Hylton  v.  Brown,  1  Wash. 
C.  C.  343;  2  Phil.  Ev.  537;  Withers  v.  GUlespy,  7  Serg.  &  R.  14; 
Clark  v.  Fletcher,  1  Allen,  53. 

It  is  well  settled  in  criminal  cases  that  the  court  cannot  compel 
the  defendant  to  produce  an  instrument  in  writing  in  his  posses- 
sion, to  be  used  in  evidence  against  him,  as  to  do  so  would  be  to 
compel  the  defendant  to  furnish  evidence  against  himself,  which 
the  law  prohibits.  .  .  .  It  is  difficult  to  perceive  what  benefit 
could  result,  either  to  the  state  or  to  the  defendant,  from  the  giv- 
ing of  such  a  notice,  while  to  the  defendant  it  is  liable  to  work  a 
positive  injury,  by  producing  an  unfavorable  impression  against 
him  in  the  minds  of  the  jury,  upon  his  refusal  to  produce  it  after 
notice.     McGinnis  v.  State,  24  Ind.  500. 

A  copy  of  a  material  paper  is  admissible  in  evidence  against  one 
who,  having  the  original  in  his  possession,  fails  to  produce  it  on 
notice.     Com.  v.  Shurn,  145  Mass.  150. 

Reduced  to  digest  form  the  rules  relating  to  the  subject  may 
be  summarized  as  follows: — 

If  the  writing  is  in  the  custody  of  the  adverse  party,  he  must 
first  have  reasonable  notice  to  produce  it.  If  he  fails  to  do  so, 
the  contents  of  the  writing  may  be  proved  as  in  case  of  its  loss. 
But  the  notice  to  produce  it  is  not  necessary  when  the  writing  is 
a  notice,  or  when  it  has  been  wrongfully  obtained  or  withheld  by 
the  adverse  party.     If  a  party  refuses  to  produce  a  document  in 


BEST   AND    SECOND  A II Y    EVIDENCE.  4T 

his  possession  after  notice  to  do  so,  and  compels  the  adverse  party 
to  give  secondary  evidence  thereof,  he  cannot  afterwards  offer 
either  the  paper  or  secondary  evidence  of  its  contents,  without 
permission  of  the  court. 

There  is  nothing  in  the  foregoing  requirements  that  compels  a 
party  calling  for  a  certain  document  or  writing  to  offer  it  in  evi- 
dence if  upon  inspection  it  may  appear  to  be  irrelevant  in  its- 
tendency  or  disappointing  in  its  effect,  and  in  either  event  there 
is  nothing  in  the  mere  fact  of  having  noticed  the  party  to  produce 
it  that  entitles  it  to  any  exceptional  treatment. 

For  further  elucidation  affecting  this  topic  see  1  Rice,  Civil 
Evidence,  chap.  6. 


CHAPTER  VI. 

DOCUMENTARY  EVIDENCE. 

§  32.   Term  Defined. 

33.  Public  Documents  in  Evidence. 

a.  Examined  Copy. 

b.  Recent  State  Legislation  on  the  Subject. 

c.  77/6!  i?w/e  w  California. 

d.  !7%e  iilwfe  w  Aew  ForA;. 

e.  ivw/e  fcfl  United  States  Courts. 

34.  Refreshing  Memory  by  the  Use  of. 

a.  Private  Accounts  and  Documents  Obtained  by  Seizure. 

35.  27/e  English  Rule. 

36.  ParoZ  Evidence  as  Affecting. 

37.  J/o/js,  Charts,  etc.,  in  Evidence. 

%  32.  Term  Defined. — "Written  document"  has  been  defined  as 
"that  which  conveys  information;  that  which  furnishes  evidence 
or  proof;  a  written  or  printed  instrument.  An  instrument  on 
which  is  recorded,  by  means  of  letters,  figures,  or  marks,  matter 
which  may  be  evidently  used."  1  Whart.  Ev.  §  614;  Anderson, 
Law.  Diet,  title  Document. 

"  Recent  statutes  having  used  the  term  '  document '  to  desig- 
nate the  objects  of  forgery,  as  well  as  in  some  measures  of  larceny, 
it  becomes  our  duty  to  inquire,  in  the  first  place,  what  the  term 
' document'  includes.  And  the  answer  is  that  a  document,  in 
this  sense,  is  an  instrument  on  which  is  recorded,  by  means  of 
letters,  figures,  or  marks,  matter  which  may  be  evidently  used. 
In  this  sense  tho  term  document  applies  to  writings ;  to  words 
printed,  lithographed,  or  photographed  ;  to  seals,  plates,  or  stones 
on  which  inscriptions  are  cut  or  engraved ;  to  photographs  and 
pictures ;  to  maps  and  plans.  So  far  as  concerns  admissibility,  it 
makes  no  difference  what  is  the  thing  on  which  the  words  or  signs 
offered  may  be  recorded."     Wharton,  Crim.  Ev.  §  519. 

Under  this  term  are  properly  included  all  material  substances 
on  which  the  thoughts  of  men  are  represented  by  writing  or  any 
other  species  of  conventional  mark  or  symbol;  this  is  the  compre- 
hensive definition  by  Best.     Sir  James  Stephen's  definition  is  more 

48 


DOCUMENTARY    EVIDENCE.  49 

restricted:  "Any  substance  having  any  matter  expressed  or  de- 
scribed upon  it  by  marks  capable  of  being  read."  Stephen,  Dig. 
Ev.  art.  1. 

Chamberlain,  in  his  valuable  annotations  on  the  treatise  of  Best, 
at  page  215,  comments  suggestively  as  follows:  "TVithin  these 
definitions,  a  ring  or  banner  with  an  inscription,  a  musical  compo- 
sition, and  a  savage  tattooed  with  words  intelligible  to  himself, 
would  all  be  documents.  Photographs,  caricatures,  wooden  tal- 
lies, and  the  like,  would  probably  be  excluded  under  Stephen's 
definition,  not  apparently  under  the  others." 

While  the  sweeping  definitions  here  given  are  probably  suffi- 
ciently accurate  for  the  purpose  of  distinguishing  documentary 
from  personal  evidence,  it  may  be  doubted  whether  the  definition 
of  "document"  could  not  with  advantage  be  narrowed  to  the 
single  case  of  writing  as  a  means  of  conveying  thought  in  certain 
instances.  Thus  it  is  submitted,  the  so-called  "best  evidence  rule" 
applies  only  to  written  documents.  Thus,  for  example,  in  Com. 
v.  Morrell,  99  Mass.  512,  it  was  held  that  a  tag  of  a  valise  on 
which  words  were  inscribed  was  not  a  document.  But  see  Mem- 
phis &  C.  R.  Co.  v.  Maples,  63  Ala.  601. 

Public  documents  include  "an  instrument  of  record  concerning 
the  business  of  the  people  at  large,  preserved  in  or  emanating 
from  any  department  of  government;  also,  a  publication  printed 
or  issued  by  order  of  one  or  both  houses  of  Congress  or  of  a  state 
legislature."     Anderson,  Law  Diet,  title  Document. 

Public  documents  include  also  state  papers,  maps,  charts,  and 
like  formal  instruments,  made  under  public  auspices.  A  copy  of 
such  document,  issued  by  public  authority,  is  as  valid  as  the  orig- 
inal; as,  an  officially  published  statute.  The  term  also  embraces 
official  records  required  to  be  kept  by  statute.  See  McCall  v. 
United  States,  1  Dak.  321 ;  1  Supp.  Eev.  Stat.  pp.  151,   2S8. 

There  are  records  which  partake  both  of  a  public  and  private 
character,  and  are  treated  as  the  one  or  the  other,  according  to 
the  relation  in  which  the  appellant  stands  to  them.  The  books  of 
a  corporation  are  public  with  respect  to  strangers.  Haines,  Jus- 
tices of  Peace,  677. 

The  California  Code  of  Civil  Procedure,  after  dividing  all  writ- 
ings into  two  kinds,  viz  :  public  and  private,  declares  public 
writings  to  be:  "1.  The  written  acts  or  records  of  the  acts  of  the 
sovereign  authority,  of  official  bodies  and  tribunals,  and  of  public 
\ 


50  LAW    OF    EVIDENCE   IN   CRIMINAL   CASES. 

officers,  legislative,  judicial  and  executive,  whether  of  this  state,, 
of  the  United  States,  of  a  sister  state  or  of  a  foreign  country.  2. 
Public  records  of  public  writings."  Cal.  Code  Civ.  Proc.  (1888) 
§18. 

Public  documents,  presumptively,  contain  the  records  made  by 
the  public  functionaries  in  the  executive,  legislative  and  judicial 
departments  of  the  government.  They  import  necessarily  a  high 
degree  of  credibility.  Their  recitals  are  supposed  to  contain 
authentic  memoranda  of  what  especially  concerns  the  general 
public.  And  they  are  frequently  the  memorials  and  repositories 
of  both  vested  and  inchoate  rights.  It  is  contrary  to  public  pol- 
icy and  the  rules  of  effective  government  to  allow  them  to  be  dis- 
turbed. In  rare  instances,  where  clerical  error  can  be  disclosed, 
or  where  fraudulent  practices  can  be  established,  a  public  docu- 
ment can  be  assailed  and  its  force  and  effectiveness  utterly  viti- 
ated. But  from  a  very  early  period  these  documents  have  been 
open  to  inspection  at  all  reasonable  hours,  and  frequently  where 
written  and  other  documents  are  in  the  official  custody  of  some 
officer  of  the  court,  inspection  may  be  had  upon  due  application 
and  an  order  granted.  It  ex  v.  Staffordshire,  6  Ad.  &  El.  99; 
Atherfold  v.  Beard,  2  T.  K.  610;  Stone  v.  Crocker,  24  Pick.  88. 

§  33.  Public  Documents  in  Evidence. — The  statutory  law  of 
the  various  states  makes  ample  provision  for  the  introduction  of 
public  documents  in  evidence  and  indicates  the  method  to  be 
adopted.  Many  of  the  principles  which  underlie  the  introduction 
of  judicial  records  in  evidence  apply  to  the  principle  under  dis- 
cussion. It  will  be  remembered  that  not  only  are  the  judicial 
proceedings  of  the  courts  of  any  state  admitted  in  evidence,  when 
properly  attested,  but  the  records  also  are  entitled  to  the  same 
privilege.  The  language  of  the  congressional  Act  is  "  the  records 
and  judicial  proceedings  of  the  courts  of  any  state  shall  be  proved 
if  admitted  in  any  other  state  in  the  United  States  by  the  attesta- 
tions of  the  clerk  and  the  seal  of  the  court  annexed,  if  there  be  a 
seal,  together  with  a  certificate  of  the  judge,  chief  justice,  or  pre- 
siding magistrate,  as  the  case  maybe,  that  the  said  attestation  is  in 
due  form."  Act  of  May  26,  1790,  §  1;  1  Story,  U.  S.  Const.  93. 
This  Act  was  passed  pursuant  to  the  Constitution,  conferring  the 
power  upon  Congress  to  prescribe  the  manner  in  which  public 
acts,  records  and  judicial  proceedings  of  one  state  shall  be  proved 
in  any  other  state  and  the  effect  to  be  given  to  them.  U.  S.  Const, 
art.  4,  §  1. 


DOCUMENTARY    EVIDENCE.  51 

The  Act  prescribes  the  persons  by  whom  the  records  shall  be 
attested,  but  the  form  of  the  attestation,  and  that  alone,  is  not 
prescribed,  but  must  conform  to  the  usage  of  the  state  in  which 
the  record  is,  and  not  to  that  of  the  United  States  or  of  the  state 
in  which  it  is  to  be  used  in  evidence.  Morris  v.  Patchin,  24  1ST. 
Y.  395,  82  Am.  Dec.  311. 

Judge  Allen  in  the  above  entitled  cause  lays  down  the  rule  that 
the  clerk  alone  can  certify  under  this  statute,  and  that  the  certifi- 
cate of  his  under  clerk  in  his  absence  is  incompetent. 

"We  do  not  think  the  various  provisions  of  the  state  constitu- 
tions securing  to  the  defendant  in  a  criminal  prosecution  the  right 
"  to  be  confronted  with  the  witnesses  against  him,"  can  apply  to 
the  proof  of  facts  in  their  nature  essentially  and  purely  docu- 
mentary, and  which  can  only  be  provided  by  the  original,  or  by  a 
copy  officially  authenticated  in  some  way  especially  when  the  fact 
to  be  proved  comes  up  collaterally.  People  v.  Jones,  24  Mich. 
215. 

The  Constitution  of  the  United  States  (Amendment  YI.) 
contains  the  same  provision  in  the  same  words;  yet,  upon  an  in- 
dictment for  arresting  a  person  accredited  as  a  foreign  minister, 
contrary  to  an  Act  of  Congress,  it  has  been  held  that  the  certifi- 
cate of  the  Secretary  of  State  (of  the  United  States)  that  the  per- 
son had  been  so  recognized  by  the  Department  of  State,  was  full 
evidence  of  the  fact  (  United  States  v.  Benner,  1  Baldw.  234);  and 
so  upon  an  indictment  for  an  assault  and  battery  upon  an  attache 
and  secretary  to  the  legation  of  Spain,  such  certificate  was  held 
the  highest  and  best  evidence.  United  States  v.  Ziddel,  2  Wash. 
C.  C.  205.  Yet,  the  fact  certified  to  was  much  more  directly  in 
issue,  and  more  essential  to  the  offense  charged,  than  in  the  pres- 
ent case.     See  also  United  States  v.  Ortega,  4  Wash.  C.  C.  531. 

Itoscoe  and  Wharton,  and  other  writers  upon  evidence  in 
criminal  cases,  in  support  of  the  doctrines  which  they  lay  down 
touching  this  matter  of  the  production  and  use  of  documents  as 
evidence,  cite  civil  as  well  as  criminal  cases,  and  Roscoe  says,  that 
the  rules  of  evidence  with  regard  to  the  proof  of  documents,  axe 
the  same  in  both. 

The  general  doctrine,  as  stated  by  them  all,  is  substantially  this, 
that  records  and  entries  of  a  public  nature,  in  books  required  by 
law  to  be  kept,  may  be  proved  by  an  examined  copy,  and  by  a 
certified  copy  where  the  officer  having  charge  of  the  record  is 


52  LAW    OF   EVIDENCE   IN   CRIMINAL    CASES. 

authorized  by  law  to  make  copies  to  be  used  as  evidence,  both  for 
the  sake  of  convenience  and  because  of  the  public  character  of  the 
facts  they  contain,  and  the  ease  with  which  any  fraud  or  error  in 
the  copy  can  be  detected.  Roscoe,  Crim.  Ev.  (Gth  Am.  ed.)  148, 
et  seq.,  157,  160;  1  Whart.  Am.  Crim.  Law,  §  654;  1  Greenl.  Ev. 
(1st  ed.)  §  91. 

So  where  a  person  is  served  by  a  subpoena  duces  tecum  to  pro- 
duce a  document,  which  is  of  itself  competent  evidence,  or  may 
be  identified  by  some  one  else,  it  is  not  necessary  to  have  him 
sworn  or  to  put  him  on  the  stand.  Perry  v.  Gibson,  1  Ad.  & 
El.  32,  cited  in  Eoscoe,  Crim.  Ev.  101;  State  v.  Frederic,  69  Me. 
400. 

a.  Examined  Copy. — The  most  felicitous  evasion  of  the  em- 
barrassments frequently  encountered,  under  the  old  practice  in 
introducing  public  documents  in  evidence  is  by  "examined  copy," 
that  is,  a  copy  sworn  to  be  a  true  copy  by  a  witness  who  has  com- 
pared it  carefully  with  the  original.  This  mode  of  proof  avoids 
much  inconvenience.  There  is  an  insuperable  objection  to  the 
actual  production  of  the  original  documents  themselves.  They 
are,  comparatively  speaking,  little  liable  to  abstraction,  alteration 
or  misrepresentation.  The  entire  community  are  interested  in 
their  preservation.  With  but  few  exceptions  they  are  subject  to 
daily  inspection,  and  they  are  frequently  required  for  evidentiary 
purposes,  so  frequently,  in  fact,  as  to  be  demanded  in  several 
places  at  the  same  time.  Obviously  this  constant  handling  and 
bandying  would  result  in  mutilation  and  loss,  and  the  rule  of 
"  examined  copy  "  avoids  much  confusion,  delay  and  hardship. 

b.  Recent  State  Legislation  on  the  Subject. — Colorado 
legislation  illustrates  the  latest  phase  of  statutory  enactment  con- 
cerning this  subject  of  public  documents.  Its  Code  of  Civil  Pro- 
cedure, as  amended  in  1889,  provides : 

"  A  copy  of  any  document  or  record  or  paper,  in  the  custody 
of  a  public  officer  of  this  state  or  of  the  United  States,  within 
this  state,  certified  under  the  official  seal,  or  verified  by  the  oath 
of  such  officer  to  be  a  true,  full  and  correct  copy  of  the  original 
in  his  custody,  may  be  read  in  evidence  in  an  action  or  proceed- 
ing in  the  courts  of  this  state,  in  the  like  manner,  and  with  the 
like  effect  as  the  original  could  be  if  produced."  Rice,  Ann. 
Code  Civ.  Proc.  §  422. 

It  must  be  remembered,  however,  that  courts  do  not  take  ju- 


DOCUMENTARY    EVIDENCE.  53 

dicial  notice  of  the  statutes  of  otter  states.  They  must  be  set 
out  in  the  pleadings,  and  proved  like  other  facts.  Polk  v.  Butter- 
field,  9  Colo.  325;  Hanley  v.  Donohue,  116  U.  S.  1,  29  L.  ed. 
535;  Atchison,  T  &  S.  F  E.  Co.  v.  Betts,  10  Colo.  431;  Talbot 
v.  Seeman,  5  U.  S.  1  Cranch,  1,  2  L.  ed.  15;  Strother  v.  Zucas,  31 
U.  S.  6  Pet.  703,  8  L.  ed.  573;  Armstrong  v.  Lear,  33  U.  S.  8 
Pet.  52,  8  L.  ed.  863;  United  States  v.  Wiggins,  39  U.  S.  11  Pet. 
334,  10  L.  ed.  481;  Priestman  v.  United  States,  4  U.  S.  4  Dall. 
28,  1  L.  ed.  727;  United  States  v.  Turner,  52  U.  S.  11  How.  663, 
13  L.  ed.  857;  Pennington  v.  Gibson,  57  U.  S.  16  How.  65,  14 
L.  ed.  847;  Lamar  v.  Miaou,  114  U.  S.  218,  29  L.  ed.  94;  Frith 
v.  Sprague,  14  Mass.  455;  Hooper  v.  Moore,  50  ]ST.  C.  130;  Peck 
v.  Eibbard,  26  Vt.  698,  62  Am.  Dec.  605;  Woodrow  v.  O'Connor, 
28  Yt.  776;  Bean  v.  Briggs,  4  Iowa,  464;  Eastman  v.  Crosby,  8 
Allen,  206. 

c.  The  Rule  in  California. — Official  documents  may  be  proved 
as  follows : 

1.  Acts  of  the  executive  of  the  state,  by  the  records  of  the  state 
department  of  the  state,  and  of  the  United  States,  by  the  records 
of  the  State  Department  of  the  United  States,  certified  by  the 
heads  of  those  departments,  respectively.  They  may  also  be 
proved  by  public  documents,  printed  by  the  order  of  the  legis- 
lature or  Congress,  or  either  house  thereof. 

2.  The  proceedings  of  the  legislature  of  this  state,  or  of  Con- 
gress, by  the  journals  of  those  bodies  respectively,  or  either  house 
thereof,  or  by  published  statements  or  resolutions,  or  by  copies 
certified  by  the  clerk,  or  printed  by  their  order. 

3.  The  acts  of  the  executive,  or  the  proceedings  of  the  legisla- 
ture of  a  sister  state,  in  the  same  manner. 

4.  The  acts'of  the  executive,  or  the  proceedings  of  the  legisla- 
ture of  a  foreign  country,  by  journals  published  by  their  authority, 
or  commonly  received  in  that  country  as  such,  or  by  a  copy  cer- 
tified under  the  seal  of  the  country  or  sovereign,  or  by  a  recogni. 
tion  thereof  in  some  public  act  of  the  executive  of  the  United 
States. 

5.  Acts  of  a  municipal  corporation  of  this  state,  or  of  a  board  or 
department  thereof,  by  a  copy  certified  by  the  legal  keeper  1  here- 
of, or  oy  a  printed  book  published  by  the  authority  of  such  a 
corporation. 

6.  Documents  of  any  other  class  in  this  state,  by  the  original 
or  oy  a  copy  certified  by  the  legal  keeper  thereof. 


51  LAW    OF   EVIDENCE   IN   CRIMINAL   CASES. 

7.  Documents  of  any  other  class  in  a  sister  state,  by  the  original 
or  by  a  copy  certified  by  the  legal  keeper  thereof,  together  with 
the  certificate  of  the  secretary  of  state,  judge  of  the  supreme, 
superior,  or  county  court,  or  mayor  of  a  city  of  such  state,  that 
the  copy  is  duly  certified  by  the  officer  having  the  legal  custody 
of  the  original. 

8.  Documents  of  any  other  class  in  a  foreign  country,  by  the 
original,  or  by  a  copy  certified  by  the  legal  keeper  thereof,  with  a 
certificate  under  seal,  of  the  country  or  sovereign,  that  the  docu- 
ment is  a  valid  and  subsisting  document  of  such  country,  and  that 
the  copy  is  duly  certified  by  the  officer  having  the  legal  custody 
of  the  original. 

9.  Documents  in  the  departments  of  the  United  States  Govern- 
ment, by  the  certificate  of  the  legal  custodian  thereof.  Cal.  Code 
Civ.  Proc.  §  1918. 

d.  The  Rule  in  New  York. — First  as  typical  of  code  legisla- 
tion the  New  York  Code  of  Civil  Procedure  is  cited  as  follows: 

"Statutes,  etc,  How  Proved,  §  932. — A  statute,  or  joint  res_ 
olution,  passed  by  the  legislature  of  the  state,  may  be  read  in 
evidence,  from  a  newspaper,  designated,  as  prescribed  by  law,  to 
publish  the  same,  until  six  months  after  the  close  of  the  session  at 
which  it  was  passed;  and,  at  any  time,  from  a  volume  printed 
under  the  direction  of  the  secretary  of  state. 

"Copies  of  Records  and  Papers  in  Certain  Offices,  Pre- 
sumptive Evidence,  §  933. — A  copy  of  a  paper  filed,  kept, 
entered  or  recorded,  pursuant  to  law,  in  a  public  office  of  the 
state,  the  officer  having  charge  of  which  has,  pursuant  to  law,  an 
official  seal;  or  with  the  clerk  of  the  court  of  a  state;  or  with  the 
clerk  or  secretary  or  either  house  of  the  legislature,  or  of  any  other 
public  body  or  public  board  created  by  authority  of  a  law  of  the 
state,  and  having,  pursuant  to  law,  in  such  a  public  office,  or  by 
such  a  clerk  or  secretary,  is  evidence,  as  if  the  original  was  pro- 
duced. But  to  entitle  it  to  be  used  in  evidence,  it  must  be  certi- 
fied by  the  clerk  of  the  court,  under  his  hand  and  the  seal  of  the 
court;  or  by  the  officer  having  the  custody  of  the  original,  or  by 
his  deputy  or  clerk,  appointed  pursuant  to  law,  under  his  official 
seal,  and  the  hand  of  the  person  certifying;  or  by  the  presiding 
officer,  secretary,  or  clerk  of  the  public  body  or  board,  appointed 
pursuant  to  law,  under  his  hand,  and,  except  where  it  is  certified 
by  the  clerk  or  secretary  of  either  house  of  the  legislature,  under 
the  official  seal  of  the  body  or  board. 


DOCUMENTARY    EVIDENCE.  55 

"Papers  Filed  with  Town  Clerk,  §  934. — A  copy  of  a  paper 
fled,  pursuant  to  law,  in  the  office  of  a  town  clerk,  or  a  transcript 
from  a  record  kept  therein,  pursuant  to  law,  certified  by  the  town 
<}lerk,  is  evidence,  with  like  effect  as  the  original." 

e.  Rule  in  United  States  Courts.— The  records  of  courts 
of  the  United  States  are  proved  by  exemplified  copies,  under 
the  seal  of  the  court,  and  certified  by  the  clerk.  Pepoon  v. 
Jenkins,  2  Johns.  Cas.  119.  And  by  Act  of  May  14,  1845  it 
is  provided  that  a  copy  of  any  records  and  proceedings  of  the 
district  and  circuit  courts  of  the  United  States  may  be  received  in 
evidence  in  all  courts  of  the  state  of  Kew  York  when  certified  by 
the  clerk  or  officer  in  whose  custody  the  same  is  required  by  law 
to  be,  to  have  been  compared  by  him  with  the  original,  and  to  be 
a  correct  transcript  therefrom,  and  of  the  whole  of  such  orio-inal 
and  attested  by  the  official  seal  of  such  officer.  Laws  1S45 
chap.  303. 

Desty,  Fed.  Proc.  §  906,  states  the  rule  of  the  Federal  courts, 
regulating  the  admission  of  testimony.  The  language  is :  "All 
records  and  exemplifications  of  books,  which  may  be  kept  in  any 
public  office  of  any  state  or  territory,  or  of  any  country  subject  to 
the  jurisdiction  of  the  United  States,  not  appertaining  to  a  court 
•shall  be  proved  or  admitted  in  any  court  or  office  in  any  other 
state  or  territory,  or  in  any  such  country  by  the  attestation  of 
the  keeper  of  the  said  records  or  books,  and  the  seal  of  his  office 
annexed,  if  there  be  a  seal,  together  with  a  certificate. 

Modern  legislation  has  made  ample  provision  for  the  introduc- 
tion of  public  documents  in  evidence,  and  while  these  various 
provisions  vary  somewhat  in  phraseology,  the  scope  and  meaning 
of  their  various  recitals  is  substantially  the  same. 

Written  laws  may  be  proved  by  properly  authenticated  copies; 
unwritten  by  parol  testimony  of  experts.  Ennis  v.  Smith,  55  U. 
S.  14  How.  400,  14  L.  ed.  472.  Foreign  laws  must  be  proved 
like  other  facts;  they  must  be  verified  by  oath,  or  by  some  hio-h 
authority  not  less  to  be  respected  than  the  oath  of  an  individual. 
Ch  urch  v.  Eubbart,  6  U.  S.  2  Cranch,  1ST,  2  L.  ed.  249.  A  copy 
of  an  instrument  can  be  admitted  in  evidence  only  upon  being 
proved  a  true  copy.  Smith  v.  Carrington,  8  U.  S.  4  Cranch  62 
2  L.  ed.  550.  Where  copies  are  made  evidence  by  statute  the 
mode  of  authentication  must  be  strictly  pursued.  The  legislature 
may  establish  new  rules  of  evidence  in  derogation  of  the  common 


56  LAW    OF    EVIDENCE    IN    CRIMINAL   CASES. 

law,  but  the  judicial  law  is  limited  to  the  rule  laid  down.     Smith 
v.  United  States,  30  U.  S.  5  Pet.  292,  8  L.  ed.  130. 

Federal  courts  also  provide  for  the  proof  of  laws  and  legislative 
records.  The  public  laws  of  a  state  may  be  read  in  these  courts, 
and  the  exercise  of  any  authority  which  they  contain  may  be  de- 
duced historically  from  them;  but  private  laws  and  special  pro- 
ceedings are  governed  by  a  different  rule.  Zelandv.  Wilkinson, 
31  U.  S.  6  Pet.  317,  8  L.  ed.  412;  Course  v.  Stead,  4U.S.4  Dall. 
22,  1  L.  ed.  721. 

Printed  journals  of  either  house  of  a  legislature  published  in 
obedience  to  law,  are  competent  evidence  of  its  proceedings. 
Post  v.  Kendall  County  Suprs.  105  U.  S.  667,  26  L.  ed.  1204;. 
South  Ottawa  v.  Perkins,  91  U.  S.  260,  21  L.  ed.  151. 

A  pamphlet  of  the  laws  of  a  sister  state,  purporting  to  be 
printed  by  the  law  printer,  is  admissible  in  evidence.  Thompson 
v.  Musser,  1  U.  S.  1  Dall.  458,  1  L.  ed.  222. 

Under  the  congressional  Act  of  May  26,  1790,  chap.  38,  copies 
of  the  legislative  acts  of  the  several  states,  authenticated  by  hav- 
ing the  seal  of  the  state  affixed  thereto,  are  conclusive  evidence 
of  such  acts  in  the  courts  of  other  states  of  the  Union.  No  other 
formality  is  required  than  the  annexation  of  the  seal,  which  will 
be  presumed  to  have  been  done  by  an  officer  having  custody 
thereof  and  competent  authority  to  affix  it.  United  States  v. 
Amedy,  24  U.  S.  11  Wheat.  392,  6  L.  ed.  502;  United  States  v. 
Johns,  4  U.  S.  4  Dall.  412,  1  L.  ed.  888. 

It  is  now  well  settled  that  the  statute  books  of  a  sister  state 
purporting  to  be  published  under  the  authority  of  the  state  are 
competent  proof  of  its  statute  law.  Young  v.  Bank  of  Alexan- 
dria, 8  U.  S.  4  Cranch,  384,  2  L.  ed.  655;  Paynham  v.  Canton,  3 
Pick.  295;  Midlen  v.  Morris,  2  Pa.  85;  Danforth  v.  Peynolds,  1 
Yt.  265;  State  v.  Abbey,  29  Yt.  60,  67  Am.  Dec.  754.  A  foreign 
statute  may  be  proved  by  the  testimony  of  a  practicing  attorney 
of  that  jurisdiction ;  but  resort  to  this  grade  of  evidence  is  not 
favored.     Kopke  v.  People,  43  Mich.  41. 

§  34.  Refreshing  Memory  by  the  Use  of.  — A  document 
which  may  be  inadmissible  intrinsically  and  per  se  as  primary  or 
secondary  evidence,  either  because  it  does  not  embody  the  sub- 
stance of  the  issue,  or  because  it  is  in  the  nature  of  hearsay,  will 
often  be  admissible  to  refresh  the  memory  of  a  witness,  and  to 
enable  him  to  speak  on  the  matters  to  which  it  refers. 


DOCUMENTARY    EVIDENCE.  5  i 

It  appears  that  such  a  document  may  be  handed  to  a  witness 
for  inspection,  and  that  the  witness  may  give  oral  evidence 
accordingly,  after  a  perusal  of  its  contents: — 

1.  When  the  writing  actually  revives  in  his  mind  a  recollection 
of  the  facts  to  which  it  refers. 

2.  When,  although  it  fail  to  revive  such  a  recollection,  it  cre- 
ates a  knowledge  or  belief  in  the  witness  that,  at  the  time  when 
the  writing  was  made,  he  knew  or  believed  it  to  contain  an  accu- 
rate statement  of  such  facts. 

3.  When,  although  the  writing  revives  neither  a  recollection  of 
the  facts  nor  of  a  former  conviction  of  its  accuracy,  the  witness  is- 
satisfied  that  the  writing  would  not  have  been  made  unless  the 
facts  which  it  purports  to  describe  had  occurred  accordingly. 
Powell,  Ev.  (4th  ed.)  359,  360. 

It  is  not  necessary  that  the  memorandum  should  have  been 
actually  made  by  the  witness,  if  he  can  otherwise  make  it  an  orig- 
inal source  of  personal  recollection.  Thus,  a  witness  has  been 
allowed  to  refresh  his  memory  from  a  paper  which  he  remembers 
to  have  recognized  as  a  correct  narrative  when  the  facts  were 
fresh  in  his  memory.  Duchess  of  Kingston ]s  Case,  20  How.  St. 
Tr.  619. 

There  is  no  precise  time  within  which  a  writing  must  be  shown 
to  have  been  made  before  it  can  be  used  by  a  witness.  It  is  not- 
necessary  that  it  should  have  been  made  contemporaneously  with 
the  occurrence  of  the  fact;  but  it  ought  to  have  been  made  soon 
afterwards,  or  at  least  within  such  a  subsequent  time  as  will  sup- 
port a  reasonable  probability  that  the  memory  of  the  witness  had 
not  become  impaired  when  the  statement  was  committed  to  paper. 
Powell,  Ev.  (4th  ed.)  362,  363. 

It  appears  to  be  only  necessary  that  the  witness  should  swear 
positively  that  the  memorandum  was  made  at  a  time  when  he  had 
a  distinct  recollection  of  the  facts,  and  ante  litem  motam.  11  bod 
v.  Cooper,  1  Car.  &  K.  6±6. 

The  memorandum  must  either  have  been  made  by  the  witness 
or  recognized  by  him,  at  or  about  the  time  when  it  was  made,  as 
a  correct  account.  It  must  not  contain  any  of  the  elements  of 
hearsay,  and  it  will  therefore  be  inadmissible  if  it  appear  to  be  the 
statement  of  a  third  person  {Anonymous,  Ambl.  252)  as  where  it 
had  been  drawn  up  by  such  a  person  from  the  witness's  own  mem- 
oranda; or  even  if  it  be  a  copy  made  by  the  witness  himself  from 


5S  LAW    OF    EVIDENCE   IN    CRIMINAL   CASES. 

his  own  original  memoranda.  Jones  v.  Stroud,  2  Car.  &  P.  196. 
The  rule  is  consistent  with  the  general  principles  of  secondary 
evidence,  by  which  the  copy  of  a  copy,  unless  in  the  nature  of  a 
duplicate  original,  is  entirely  inadmissible,  and  corresponds  with 
the  express  dictum  of  Mr.  Justice  Patteson,  that  "the  copy  of  an 
entry,  not  made  by  the  witness  contemporaneously,  does  not  seem 
to  be  admissible  for  the  purpose  of  refreshing  a  witness's  mem- 
ory."    Burtod  v.  Plummer,  2  Ad.  &  El.  343. 

All  copies  and  duplicates  should  be  shown  to  the  respective 
counsel  as  it  is  well  settled  that  whenever  a  writing  has  been 
shown  to  a  witness  it  may  be  inspected  by  the  opposite  party,  and 
if  proved  by  the  witness,  must  be  read  in  evidence  before  his  tes- 
timony  is  closed,  or  it  cannot  be  so  read,  except  on  recalling  the 
witness,  or  with  the  permission  of  the  court. 

a.  Private  Accounts  and  Documents  Obtained  by  Seizure. 
— Public  officials  in  their  zeal  to  serve  the  commonwealth,  seem 
totally  ignorant  of  the  fact,  that  private  books,  memoranda,  docu- 
ments and  papers  in  the  possession  of  the  accused,  are  not  evi- 
dence against  him,  when  they  are  produced  by  the  instrumentali- 
ty of  a  search  warrant,  or  in  any  other  way  are  brought  before 
the  court  by  compulsion.  So,  too,  there  is  general  misconception 
as  to  the  effect  or  failure  of  the  accused  to  produce  such  books 
and  documents.  Such  failure  is  not  an  admission  of  the  charges 
the  state  claims  it  could  prove;  and  where  it  has  been  sought  to 
foist  upon  the  statute  book  legislation  to  that  effect,  it  may  be 
wholly  disregarded  by  the  accused,  and  treated  as  an  unconstitu- 
tional enactment.  These  views  are  sanctioned  by  a  recent  decis- 
ion of  the  Supreme  Court  of  the  United  States  in  which  Mr. 
Justice  Bradley,  writing  for  reversal  outlines  the  subtle  distinc- 
tion that  should  pervade  this  entire  grade  of  evidence.  Boyd  v. 
United  States,  116  U.  S.  616,  20  L.  eel.  746. 

§  35.  The  English  Rule. — The  English  rules  of  evidence 
relating  to  this  subject  are  stated  by  Sir  James  Stephen  in  the 
following  language: 

"The  contents  of  documents  may  be  proved  either  by  primary 
or  by  secondary  evidence.     Art.  63. 

"Primary  evidence  means  the  document  itself  produced  for  the 
inspection  of  the  court,  accompanied  by  the  production  of  an 
attesting  witness,  in  cases  in  which  an  attesting  witness  must  be 
called,  under  the  provision  of  articles  66  and  67,  or  an  admission 


DOCUMENTARY    EVIDENCE.  59 

of  its  contents  proved  to  have  been  made  by  a  person  whose 
admissions  are  relevant  under  articles  15-20. 

"Where  a  document  is  executed  in  several  parts,  each  part  is 
primary  evidence  of  the  document. 

"Where  a  document  is  executed  in  counterpart,  each  counter- 
part being  executed  by  one  or  some  of  the  parties  only,  each 
counterpart  is  primary  evidence  as  against  the  parties  executing  it. 
"Where  a  number  of  documents  are  all  made  by  printing,  lith- 
ography, or  photography,  or  any  other  process  of  such  a  nature  as 
in  itself  to  secure  uniformity  in  the  copies,  each  is  primary  evi- 
dence of  the  contents  of  the  rest;  but  where  they  are  all  copies  of 
a  common  original,  no  one  of  them  is  primary  evidence  of  the 
contents  of  the  original."     Art.  61. 

"The  contents  of  documents  must,  except  in  the  cases  mentioned 
in  article  71,  be  proved  by  primary  evidence;  and  in  the  cases 
mentioned  in  article  GG  by  calling  an  attesting  witness."  Art.  65. 
"If  a  document  is  required  by  law  to  be  attested,  it  may  not  be 
used  as  evidence  (except  in  the  cases  mentioned  or  referred  to  in 
the  next  article)  if  there  be  an  attesting  witness  alive,  sane,  and 
subject  to  the  process  of  the  court,  until  one  attesting  witness  at 
least  has  been  called  for  the  purpose  of  proving  its  execution. 

"If  it  be  shown  that  no  such  attesting  witness  is  alive  or  can  be 
found,  it  must  be  proved  that  the  attestation  of  one  attesting  wit- 
ness at  least  is  in  his  handwriting,  and  that  the  signature  of  the 
person  executing  the  document  is  in  the  handwriting  of  that  per- 
son. 

"The  rule  extends  to  cases  in  which — 

the  document  has  been  burnt,  or  cancelled  (or  lost); 
the  subscribing  witness  is  blind; 

the  person  by  whom  the  document  was  executed  is  pre- 
pared to  testify  to  his  own  execution  of  it; 

the  person  seeking  to  prove  the  document  is  prepared  to 
prove  an  admission  of  its  execution  by  the  person  who  exe- 
cuted it,  even  if  he  is  a  party  to  the  cause,  unless  such  admis- 
sion be  made  for  the  purpose  of,  or  has  reference  to  the 
cause."     Art.  6Q. 
"In  the  following  cases,  and  in  the  case  mentioned  in  article  S8 
but  in  no  others,  a  person  seeking  to  prove  the  execution   of  a 
document  required  by  law  to  be  attested  is  not  bound  to  call  Jot- 
that  purpose  either  the  party  who  executed  the  deed  or  any 


60  LAW    OF   EVIDENCE   IN   CEIMINAL   CASES. 

attesting  witness,  or  to  prove  the  handwriting  of  any  such  party 
or  attesting  witness — 

(1)  "When  he  is  entitled  to  give  secondary  evidence  of  the  con« 
tents  of  the  document  under  article  71  (a) ; 

(2)  When  his  opponent  produces  it  when  called  upon;  and 
claims  an  interest  under  it  in  reference  to  the  subject-matter  of 
the  suit ; 

(3)  When  a  person  against  whom  the  document  is  sought  to  be 
proved  is  a  public  officer  bound  by  law  to  procure  its  due  execu- 
tion, and  who  has  dealt  with  it  as  a  document  duly  executed." 
Art.  67. 

"If  the  attesting  witness  denies  or  does  not  recollect  the  execu- 
tion of  the  document,  its  execution  may  be  proved  by  other  evi- 
dence."    Art.  68. 

"An  attested  document  not  required  by  law  to  be  attested  may 
in  all  cases  whatever,  civil  or  criminal,  be  proved  as  if  it  was  un^ 
attested."     Art.  69. 

"Secondary  evidence  means- 

(1)  Examined  copies,  exemplifications,  office  copies,  and  certi- 
fied copies; 

(2)  Other  copies  made  from  the  original  and  proved  to  be  cor- 
rect; 

(3)  Counterparts  of  documents  as  against  the  parties  who  did 
not  execute  them; 

(4)  Oral  accounts  of  the  contents  of  a  document  given  by  some 
person  who  has  himself  seen  it."     Art.  70. 

"Secondary  evidence  may  be  given  of  the  contents  of  a  docu- 
ment in  the  following  cases: 

"(a)  When  the  original  is  shown  or  appears  to  be  in  the  posses- 
sion or  power  of  the  adverse  party,  and  when,  after  the  notice 
mentioned  in  article  72,  he  does  not  produce  it; 

"(b)  When  the  original  is  shown  or  appears  to  be  in  the  posses- 
sion or  power  of  a  stranger  not  legally  bound  to  produce  it,  and 
who  refuses  to  produce  it  after  being  served  with  a  subpoena  du- 
ces tecum,  or  after  having  been  sworn  as  a  witness  and  asked  for 
the  document  and  having  admitted  that  it  is  in  court; 

"(c)  When  the  original  has  been  destroyed  or  lost,  and  proper 
search  has  been  made  for  it; 

"(d)  When  the  original  is  of  such  a  nature  as  not  to  be  easily 
movable,  or  is  in  a  country  from  which  it  is  not  permitted  to  be 
removed; 


DOCUMENTARY    EVIDENCE.  61 

"(e)  When  the  original  is  a  public  document; 

"(«/")  "When  the  party  has  been  deprived  of  the  original  by  fraud 
so  that  it  cannot  be  procured; 

'"(ff)  When  the  original  is  a  document  for  the  proof  of  which 
special  provision  is  made  by  an  Act  of  Parliament,  or  any  law  in 
force  for  the  time  being;  or 

"(h)  "When  the  originals  consist  of  numerous  documents  which 
cannot  conveniently  be  examined  in  court,  and  the  fact  to  be 
proved  is  the  general  result  of  the  whole  collection;  provided  that 
that  result  is  capable  of  being  ascertained  by  calculation. 

"Subject  to  the  provision  hereinafter  contained,  any  secondary 
evidence  of  a  document  is  admissible. 

"In  case  (h),  evidence  may  be  given  as  to  the  general  result  of 
the  documents  by  any  person  who  has  examined  them,  and  who 
is  skilled  in  the  examination  of  such  documents. 

"Questions  as  to  the  existence  of  facts  rendering  secondary  evi- 
dence of  the  contents  of  documents  admissible  are  to  be  decided 
by  the  judge,  unless  in  deciding  such  a  question  the  judge  would 
in  effect  decide  the  matter  in  issue."     Art.  71. 

"Secondary  evidence  of  the  contents  of  the  documents  referred 
to  in  article  71  (a)  may  not  be  given,  unless  the  party  proposing 
to  give  such  secondary  evidence  has, 

"If  the  original  is  in  the  possession  or  under  the  control  of  the 
adverse  party,  given  him  such  notice  to  produce  it  as  the  court 
regards  as  reasonably  sufficient  to  enable  it  to  be  procured;  or  has, 

"If  the  original  is  in  the  possession  of  a  stranger  to  the  action, 
served  him  with  a  subpoena  duces  tecum  requiring  its  production; 

"If  a  stranger  so  served  does  not  produce  the  document,  and  has 
no  lawful  justification  for  refusing  or  omitting  to  do  so,  his  omis- 
sion does  not  entitle  the  party  who  served  him  with  the  subpoena 
to  give  secondary  evidence  of  the  contents  of  the  document. 

"Such  notice  is  not  required  in  order  to  render  secondary  evi- 
dence admissible  in  any  of  the  following  cases: 

"  (1)  When  the  document  to  be  proved  is  itself  a  notice; 

"  (2)  When  the  action  is  founded  upon  the  assumption  that  the 
-document  is  in  the  possession  or  power  of  the  adverse  party  and 
requires  its  production; 

"  (3)  When  it  appears  or  is  proved  that  the  adverse  party  has 
obtained  possession  of  the  original  from  a  person  subpoenaed  to 
produce  it; 


62  LAW   OF   EVIDENCE   IN   CRIMINAL   CASES. 

"  (4)  When  the  adverse  party  or  his  agent  has  the  original  in 
court."     Art.  72. 

§  36.  Parol  Evidence  as  Affecting. — Parol  evidence  is  always 
admissible  to  show  that  any  document  offered  as  a  record  or 
transcript  or  certified  copy  is  a  mere  forgery.  State  v.  Gonce,  79 
Mo.  600.  But  where  there  is  no  indicia  of  fraud  a  judicial  record 
is  evidence  of  a  higher  record  and  is  received  as  conclusive  proof 
of  every  fact  material  to  the  decision  embodied  in  it.  Public 
records  are  provable  not  only  by  the  introduction  of  the  original 
document,  but  a -duly  authenticated  copy  will  have  the  same 
effect.  State  v.  Voight,  90  JST.  C.  741.  Records  of  conviction  and 
sentence  for  crime  are  frequently  proved  in  this  manner.  State 
v.  Blaisdell,  59  1ST.  H.  328. 

§  37.  Maps,  Charts,  etc.,  in  Evidence. — In  the  celebrated 
Tichborne  case  which  enlisted  the  best  legal  talent  of  the  day, 
Lord  Ch.  J.  Cockburn  admitted  a  map  of  Australia  in  evidence 
for  the  purpose  of  locating  various  places  of  interest.  It  is- 
believed  this  practice  will  commend  itself  very  generally,  even  in 
the  entire  absence  of  facts  tending  to  show  the  sources  of  infor- 
mation open  to  the  publishers  of  the  map  touching  the  accuracy 
of  their  outline.  A  map  of  public  lands  made  by  public  survey- 
ors pursuant  to  law  which  is  duly  certified  and  filed,  is  always 
admissible  in  civil  or  criminal  cases.  People  v.  Denison,  17 
Wend.  312. 

The  English  rule  upon  this  subject  finds  appropriate  expres- 
sion in  Stephen,  Dig.  Ev.  art.  37 :  "  Statements  as  to  matters  of 
general  public  history,  made  in  accredited  historical  books,  are 
relevant,  when  the  occurrence  of  any  such  matter  is  in  issue  or 
relevant  to  the  issue;  but  statements  in  such  works  as  to  private 
rights  or  customs  are  irrelevant.  Statements  of  facts  in  issue  or 
relevant  facts,  made  in  published  maps  or  charts  generally  offered 
for  public  sale  as  to  matters  of  public  notoriety,  such  as  the  rela- 
tive position  of  towns  and  countries,  and  such  as  are  usually  rep- 
resented or  stated  in  such  maps,  or  charts,  are  themselves  relevant 
facts;  but  such  statements  are  irrelevant  if  they  relate  to  matters 
of  private  concern,  or  matters  not  likely  to  be  accurately  stated 
in  such  documents." 

Restated,  the  proposition  amounts  to  this:  "Historical  works, 
mathematical  works,  and  published  maps  or  charts,  when  made 
by  a  person  indifferent  between  the  parties,  are  relevant  as  evi- 


DOCUMENTARY    EVIDENCE.  63 

dence  of  matters  of  public  and  general  interest."  So,  whenever 
an  object  other  than  a  writing  cognizable  by  the  senses  is  a  rele- 
vant fact,  such  object  may  be  exhibited  to  the  jury,  or  its  exist- 
ence, situation  and  character  may  be  proved  by  other  evidence. 
The  importance  of  this  subject  under  any  scheme  of  evidence 
must  be  apparent  and  accordingly  it  has  received  ample  consider- 
ation in  1  Rice,  Civil  Evidence,  chap.  7.  The  text  occupies  over 
78  pages,  and  generally  speaking,  applies  with  equal  force  to  both 
civil  and  criminal  cases. 


CHAPTER  VII. 

RELEVANCY. 

§38.  Preliminary  Vieio,  Term  Defined. 

39.  Evidence  Confined  to  the  Point  in  Issue. 

40.  Relevancy,  liow  Determined. 

41.  T/ie  Attributes  of  Relevancy. 

42.  Offer  of  Proof. 

43.  Indecency  no  Ground  for  Excluding  Relevant  Testimony. 

§  38.  Preliminary  Yiew,  Term  Defined. — Questions  in  regard 
to  the  relevancy  of  particular  items  of  testimony  always  depend 
upon  the  peculiar  circumstances  of  the  case,  and  must  be  solved 
by  the  application  of  sound  judgment  and  common  sense.  It  very 
often  happens,  as  practical  men  in  the  profession  well  know,  that 
facts  which  in  one  state  of  the  evidence  and  one  aspect  of  the 
case  are  entirely  irrelevant,  suddenly,  by  a  slight  change  in  the 
conditions,  become  of  controlling  importance.  Hence  the  neces- 
sity, which  so  often  happens  in  attempting  to  taken  written  testi- 
mony, of  introducing  into  a  deposition  so  many  facts  which  at 
first  sight  seem  entirely  irrelevant,  but  which  may  become  admis- 
sible and  important;  hence,  too,  one  reason  why  in  criminal  causes 
it  is  so  important  that  the  witnesses  should  testify  in  open  court, 
and  in  the  presence  of  the  accused,  in  order  that  all  their  knowl- 
edge should  be  available  to  meet  all  the  exigencies  of  the  trial. 
It  is  for  this  reason  that  so  many  reported  cases  in  the  law  of 
evidence  are  valuable,  not  so  much  for  establishing  principles  of 
law,  as  for  the  illustration  of  those  principles. 

The  word  "  relevant "  means  that  the  fact  to  which  it  is  applied 
is  so  related  to  another  fact,  that,  according  to  the  common  course 
of  events,  one  either  taken  by  itself  or  in  connection  with  other 
facts,  proves  or  renders  probable  the  past,  present  or  future  exist- 
ence or  non-existence  of  the  other.     Stephen,  Dig.  Introduction. 

The  Kcw  York  commissioners  appointed  to  draft  a  code  of 
evidence  have  elaborated  this  definition  of  Sir  James  Stephen 
and  declare  that  any  and  all  facts  necessary  to  explain  or  intro- 
duce a  fact  in  issue  or  relevant  to  the  issue,  or  which  support  or 

64 


RELEVANCV.  65 

rebut  an  inference  suggested  by  any  such  fact,  or  which  establish 
the  identity  of  anything  or  person  whose  identity  is  in  issue,  or  is 
relevant  to  the  issue,  or  which  fix  the  time  and  place  at  which 
.any  such  fact  happened,  or  which  show  that  any  document  pro- 
duced is  genuine  or  otherwise,  or  which  show  the  relation  of  the 
parties  by  whom  any  such  fact  was  caused,  or  which  afforded  an 
opportunity  for  its  occurrence  or  transaction,  or  which  is  necessary 
to  show  the  relevancy  of  other  facts,  are  relevant  so  far  as  they 
are  necessary  for  those  purposes  respectively. 

Note.— The  following  is  an  extract  from  a  lecture  delivered  by  Prof.  Austin 
Abbott,  L.  L.  D.,  to  the  students  of  the  Class  of  '92  of  the  University  of  the 
City  of  New  Yotk,  stenographically  reported  by  Mr.  Charles  W.  Thompson, 
and  published  in  the  Columbia  Law  Times  of  Nov.,  1893.  Its  reproduction 
here  is  by  permission: 

When  Macaulay  undertook  to  prepare  a  code  for  India,  and  Fitz-James 
Stephen  undertook  to  prepare  a  digest  of  the  law  of  evidence,  they  undertook 
to  turn  the  law  of  evidence  the  other  end  to,  so  to  speak;  to  bring  up  tl»e  logical 
principles  of  evidence  into  view,  emphasize  them,  make  them  explain  every- 
thing they  could,  and  to  sink  the  traditionary,  the  technical,  the  arbitrary 
rules,  to  give  a  reason  for  every  rule  of  evidence  they  could,  oi  one  reason 
which  would  explain  all  rules  of  evidence  so  far  as  possible,  and  to  minimize 
the  rules  of  evidence  that  didn't  depend  on  logical  principles.  And  the  logical 
principle  that  they  laid  down  as  the  key-note  of  all  the  rules  of  evidence  is  that 
any  fact  ought  to  be  competent  which  according  to  the  ordinary  course  of 
events  renders  probable  or  improbable  the  truth  of  a  fact  in  issue  ;  and  they 
called  that  relevancy.  They  dropped  the  word  competency  so  far  as  possible; 
applied  that  to  witnesses;  but  proposed  this  test:  for  instance,  if  the  fact  alleged 
is  payment  of  money,  if  that  is  a  fact  in  issue,  is  the  circumstance  that  before 
this  alleged  payment  the  debtor  had  plenty  of  money  and  after  that  he  did  not 
have  any,  that  before  the  alleged  payment  the  creditor  didn't  have  any  money 
and  afterwards  he  did  have  some,  are  those  circumstances  which  tend  to  render 
probable  the  fact  that  that  payment  was  made?  In  other  words,  they  said  that 
when  a  fact  is  in  issue,  any  circumstance  which  according  to  the  ordinary  ex- 
perience of  human  affairs  tends  to  render  probable  any  fact  which  would  be  the 
•cause  of  the  fact  in  issue,  or  would  be  an  effect  of  that  fact  in  issue,  is  relevant. 
Any  fact  which  is  the  usual  concomitant  of  that  fact  in  issue  is  relevant.  And 
so  on. 

They  carried  this  use  of  the  term  very  far.  For  instance,  Stephen  in  his 
Digest,  says  that  the  opinion  of  a  witness  is  relevant  if  he  is  an  expert;  it  is  not 
relevant  if  he  is  not  an  expert.  Now  that  is  not  according  to  the  ordinary  use 
of  language.  We  should  say,  does  his  opinion  relate  to  this  fact  in  issue  '? 
Yes.  Well,  then,  it  is  relevant.  It  bears  on  the  subject.  Is  he  an  expert  ? 
No.  Well,  then  it  is  not  competent.  It  is  relevant  in  the  ordinary  sense  of  the 
term,  but  if  he  is  not  qualified  to  express  an  opinion  it  is  not  competent. 

In  the  ordinary  use  of  language,  and  in  American  law,  relevant  means  germane 
to  the  subject.  The  danger  of  following  Stephen's  Digest  of  Evidence  is  that  it 
5 


66  LAW    OF   EVIDENCE   IN   CRIMINAL   CASES. 

uses  relevant  in  the  sense  of  competent  or  admissible,  and  there  has  been  more 
than  one  case  lost  by  an  attorney  objecting  that  the  evidence  wasn't  relevant  in 
Stephen's  sense  of  the  word,  when  he  didnU  give  the  other  side,  or  the  Court,  to 
understand  that  it  wasn't  competent. 

I  give  you  the  Code  of  Evidence,  and  I  advise  you  all  who  are  interested  in 
this  question— I  have  only  opened  the  door  to  it  here — to  read  the  preface  to  the 
report  of  the  Commissioners  in  preparing  that  Code  of  Evidence.  You  will  see 
how  far  they  have  gone.  In  that  Code  of  Evidence  they  have  adopted  this  use 
of  the  term  relevant;  and  it  runs  all  through  the  provisions  of  that  Code.  The 
definition  of  relevant  is  better  than  the  use  of  it  in  this  Code.  That  is  to  say, 
where  one  fact  does  render  probable  the  existence  of  the  other,  it  may  be  said  to 
be  germane  to  the  subject,  and  the  definition  of  relevant  is  not  far  out  of  the 
way  there;  but  the  use  of  the  term  as  matter  of  practice  on  the  trial  of  a  case  is 
not  safely  to  be  substituted  for  more  specific  objections  to  the  nature  of  the 
evidence. 

§  39.  Evidence  Confined  to  the  Point  in  Issue. — Xo  evi- 
dence can  be  admitted  which  does  not  tend  to  prove  or  dis- 
prove the  issue  joined.  In  criminal  proceedings  the  neces. 
sity  is  stronger,  if  possible,  than  in  civil,  of  strictly  enforcing  the 
rule  that  the  evidence  is  to  be  confined  to  the  point  in  issue;  for 
where  the  prisoner  is  charged  with  an  oifense,  it  is  of  the  utmost 
importance  to  him,  that  the  facts  laid  before  the  jury  should  con- 
sist exclusively  of  the  transaction  which  forms  the  subject  of  the 
indictment,  which  alone  he  can  be  expected  to  come  prepared  to 
answer.  Russell,  Crimes,  chap.  2,  p.  772,  §  2.  And  see  People 
v.  Stout,  4  Park.  Crim.  Eep.  106;   Whart.  Am.  Crim.  Law,  292;. 

Eoscoe,  Crim.  Ev.  SI;    Fox  v.  Clifton.  6  Bing.  354;    v. 

.  1  Lead.  Crim.  Cas.  1S9;    LaBeau  v.  People,  34  X.  Y. 

223;  RespuUica  v.  Mulatto  Bob,  4  U.  S.  4  Ball.  164,  1  L.  ed. 
777;  People  v.  Gardiner,  6  Park.  Crim.  Eep.  158;  People  v. 
Thompson,  41  X.  Y.  0;  Coleman  v.  People,  58  N.  Y.  555;  Cowley 
v.  People,  8  Abb.  K  C.  1,  83  K  Y.  464. 

The  elementary  rule  of  evidence,  that  the  testimony  must  be 
confined  to  the  points  in  issue,  is  based  not  only  on  the  reason 
"that  such  evidence  tends  needlessly  to  consume  the  public  time, 
to  draw  away  the  minds  of  the  jurors,  and  to  excite  prejudice  and 
mislead,  but.  moreover,  that  the  adverse  party,  having  had  no^ 
notice  of  such  evidence,  is  not  prepared  to  rebut  it."  1  Taylor, 
Ev.  §  298. 

AW-  are  admonished  by  this  distinguished  author  that  "the  due 
application  of  this  rule  will  occasionally  tax  to  the  utmost  the- 
firmness  and  discrimination  of  the  judge;  so  that,  while  he  shall 
reject  as  too  remote  every  fact  which  merely  furnishes  a  fanciful 


RELEVANCY.  67 

analogy  or  conjectural  inference,  he  may  admit  as  relevant  the 
evidence  of  all  those  matters  which  shed  a  real,  though  perhaps 
an  indirect  and  feeble  light  on  the  question  in  issue."  1  Taylor, 
Ev.  §  298;  Bloomer  v.  State,  48  Md.  521. 

That  evidence  properly  admissible  for  one  purpose  may  be  so 
perverted  in  its  use  as  to  effect  a  different  and  illegitimate  pur- 
pose, is  not  altogether  preventable.  But  such  evidence  cannot  on 
that  account  be  wholly  rejected.  The  correction  of  its  abuse  lies 
in  such  explanation  as  the  presiding  judge  may  feel  required  to 
give  to  the  jury  concerning  it.  Then  too  when  the  ill  concealed 
purpose  of  its  introduction  becomes  obvious  to  the  jury  it  often 
reacts  against  the  party  attempting  to  profit  by  the  irregularity. 
State  v.  Farmer,  84  Me.  436. 

Generally,  then,  it  may  be  affirmed  that  when  there  is  testi- 
mony which  has  any  legal  effect,  it  would  be  error  in  the  court  to 
determine  the  weight  of  it  or  the  fact  which  it  did  or  did  not 
ascertain.  But  whether  evidence  tends  to  prove  anything  perti. 
nent  to  the  issue  is  a  question  for  the  court.  State  v.  Taunt,  16 
Minn.  109. 

Relevancy  may  be  further  influenced  by  the  intrusion  of  a  bill 
of  particulars.  As  in  civil  cases  if  either  party  has  submitted 
such  a  bill,  the  evidence  is  restricted  upon  the  trial  to  the  speci- 
fications of  the  bill.  Com.  v.  Giles,  1  Gray,  466;  State  v.  Howe, 
43  Vt.  265. 

The  demand  should  be  made  before  the  commonwealth  opens 
its  case  to  the  jury,  and  there  is  no  prescribed  formula  in  drawing 
the  bill.  If  it  sufficiently  indicates  the  evidence  to  be  adduced  in 
establishing  the  general  charge  it  is  all  that  can  be  expected. 
Com.  v.  Snelling,  15  Pick.  321;   Com.  v.  Davis,  11  Pick.  432. 

A  bill  of  particulars  cannot  be  demanded  as  a  matter  of  absolute 
right.  Its  issuance  is  largely  within  the  scope  of  judicial  discre- 
tion. But,  instances  occasionally  arise  where  the  refusal  to 
order  a  bill  of  particulars  amounts  to  so  gross  an  abuse  of  discre- 
tion as  to  require  the  court  to  recognize  it  as  ground  of  rever.-ible 
error.  People  v.  McKmney,  10  Mich.  54;  Com.  v.  Wood,  4 
Gray,  11. 

A  copy  of  the  minutes  of  the  grand  jury  may, in  the  discretion 
of  the  court,  be  ordered  to  be  furnished  to  the  accused  when 
necessary  to  enable  him  to  prepare  for  trial. 

When  the  statements  of  an  indictment  are  sufficiently  definite 


68  LAW    OF    EVIDENCE    IN    CRIMINAL    CASKS. 

to  advise  the  accused  of  the  charge  made  against  him  he  is  not 
entitled  to  any  further  particulars;  hut  where  the  counts  are  so 
general  and  embrace  so  many  subjects  that  they  do  not  advise  the 
accused  with  sufficient  distinctness  of  the  charge  in  each  made 
against  him,  the  particulars  as  to  these  charges  should  be  given 
to  defendant  so  that  he  may  be  prepared  to  meet  them.  People 
v.  Bellows,  2  JS".  Y.  Crim.  Kep.  12. 

In  this  connection  we  will  digress  sufficiently  to  remind  the 
practitioner  that  an  exception  should  be  taken  to  the  ruling  of 
the  court  in  refusing  to  grant  the  bill,  as,  a  writ  of  error  in  a 
criminal  case  brings  up  for  review  only  questions  of  law  raised 
by  exceptions  properly  taken  upon  the  trial.  Donohue  v.  People, 
56  K  Y.  211. 

At  common  law  the  court  has  power  to  order  a  bill  of  par- 
ticulars in  any  action,  without  regard  to  its  nature,  subject  or  form. 
Phil.  Ev.  799;  Com.  v.  Snelling,  15  Pick.  321;  Hancock's  App. 
64  Pa.  170;  Early  v.  Smith,  12  Ir.  C.  L.  Rep.  35;  Wren  v.  Wield,  L. 
R.  4  Q.  B.  213;  Tidd,  Pr.  526;  Vischer  v.  Conant,  4  Cow.  396. 
The  N.  Y.  code  does  not  diminish  but  enlarges  this  power.  See  158, 
469.  A  bill  of  particulars  may  be  ordered  in  an  action  of  tort. 
Com.  v.  Snelling  and  Early  v.  Smith,  supra;  Jones  v.  Bewicke, 
L.  P.  5  C.  P.  32;  Vischer  v.  Conant  and  Wren  v.  Wield,  supra; 
Doe  v.  Philips,  6  T.  R.  597;  Humphrey  v.  Cottley,  4  Cow.  54; 
Doe  v.  Broad,  2  Scott,  N.  R.  6S5;  Eirwin  v.  Jones,  3  Hodges, 
230;  Johnson  v.  Birley,  5  Barn.  &  Aid.  540;  Webster  v.  Jones,  7 
Dowl.  &  R.  774;  Davis  v.  Chapman,  6  Ad.  &  El.  767.  A  bill 
of  particulars  may  be  ordered  in  a  criminal  proceeding.  Rex  v. 
Hodgson,  3  Car.  cV;  P.  415;  Pex  v.  Bootyman,  5  Car.  &  P.  300; 
Peg.  v.  Flower,  3  Jur.  558;  Com.  v.  Giles,  1  Gray,  466;  Pex  v. 
Curwood,  3  Ad.  &  El.  815;  1  Hawk.  P.  C.  chap.  S3,  §  13;  God- 
dard  v.  Smith,  6  Mod.  261;  Com.  v.  Davis,  11  Pick.  432;  Lam- 
bert v.  People,  9  Cow.  57S,  587;  Com.  v.  Snelling,  supra.  In  an 
action  of  crim.  con.  or  for  divorce,  an  order  for  a  bill  of  particulars 
is  i ) i'u per.  Higgs  v.  Higgs,  11  Week.  Rep.  154;  Sanderson  v.  San- 
derson,  20  AYeek.  Rep.  261;  Codrington  v.  Codrington,  3  Swab. 
&  T.  368;  Bancroft  v.  Bancroft,  3  Swab.  &  T.  610;  Winscom  v. 
Wmscom,  3  Swab.  &  T.  3S0;  Porter  v.  Porter,  3  Swab.  &  T. 
796;  Grafton  v.  Grafton,  28  L.  T.  N.  S.  144;  Brown  v.  Brown, 
L.  R.  1  Prob.  &  Div.  46,  270;  Adams  v.  Adams,  16  Pick.  254; 
Shaw  v.  Shaw,  2  Swab.  &  T.  642;    Greaves  v.  Greaves,  L.  R.  2 


RELEVANCY.  69 

Prob.  &  Div.  423;  Latourx.  Latour,  2  Swab.  &  T.  524;  Garrat  x. 
Garrat,  4  Yeates,  244;  Steele  v.  Steele,  1  U.  S.  1  Dall.  409,  1  L. 
ed.  199;  Hancocks  Appeal,  64  Pa.  470;  Gardner  x.  Gardner,  2 
Gray,  434;  Harrington  v.  Harrington,  107  Mass.  329;  Wood  v. 
Wood,  2  Paige,  108,  112,  2  L.  ed.  833,  835,  28  Am.  Dec.  451; 
Anonymous,  17  Abb.  Pr.  48;  2  Greenl.  Ev.  §  461;  Bishop,  Mar. 
&  Div.  §  315;  Morris  v.  Miller,  4  Burr.  205T. 

"It  may  be  laid  down  as  the  result  of  the  adjudications  that  the 
only  proper  office  of  a  bill  of  particulars  is  to  give  information  of 
the  specific  proposition  for  which  the  pleader  contends  in  respect 
to  any  material  issuable  fact  in  the  case,  but  not  to  disclose  the 
evidence  relied  upon  to  establish  any  such  proposition."  Ball  v. 
Ev*  nvng  Post  Pub.  Co.  3S  Hun,  15.  And  the  rule  in  relation  to 
furnishing  bills  of  particulars  in  criminal  cases,  as  stated  by  Mr. 
"Wharton  in  his  work  on  Criminal  Pleadings  and  Procedure,  is: 
"that  whenever  the  indictment  is  so  general  as  to  give  the 
defendant  inadequate  notice  of  the  charge  he  is  expected  to  meet* 
the  court  on  his  application,  will  require  the  prosecution  to  fur- 
nish him  with  a  bill  of  particulars  of  the  evidence  intended  to  be 
relied  upon." 

In  People  v.  Bellows,  2  N.  Y.  Crim.  Rep.  12,  Mr.  Justice 
Brady  holds  that  when  the  statements  in  an  indictmeut  are  suffi- 
ciently definite  to  advise  the  defendant  of  the  charge  against  him, 
he  is  not  entitled  to  any  further  particulars. 

A  motion  for  a  bill  of  particulars  is  a  motion  addressed  to  the 
discretion  of  the  court,  and,  as  such,  is  not  reversible  error  on  a 
bill  of  exceptions.  Com.  v.  Giles,  1  Gray,  466;  Com.  v.  Wood, 
4  Gray,  11;  Chaffee  v.  Soldan,  5  Mich.  242;  State  v.  Hood,  51 
Me.  364;  State  v.  NagU,  14  R.  I.  331. 

§  40.  Relevancy,  how  Determined. — Testimony  is  regarded 
as  relevant,  which  has  a  tendency  however  remote,  to  establish  a 
controverted  fact.  It  should  directly  connect  itself  with  the 
issues  raised  in  such  a  manner  as  to  assist  in  the  determination  of 
those  issues.  Hence  the  primary  importance  of  a  due  regard  for 
the  scope  and  nature  of  the  issue  on  trial,  as  it  is  quite  obvious 
that  evidence  may  be  material  and  relevant  as  regards  one  of  the 
issues  while  entirely  incompetent  and  immaterial  as  regards  the 
others.  Hovey  v.  Grant,  52  X.  H.  569;  Green  v.  Gilbert,  60  X. 
H.  146;  Bedell  v.  Foss,  50  Vt.  94;  Luce  v.  Hoisington,  56  N't. 
436;  Paynes  Y.Bennett,  114  Mass.  424;   Fitzgerald  v.  Pender- 


70  LAW    OF    EVIDENCE    IN    CRIMINAL    CASES. 

gast,  114  Mass.  368;  Martin  v.  Tobin,  123  Mass.  85;  Brierly  v. 
Davol  Mills,  128  Mass.  291;  Whart.  Crim.  Ev.  §  M',fie%  v.  Pearce, 
Peake,  75;  Rex  v.  Egerton,  Russ.  &  R.  375,  cited  by  Holroyd, J., 
in  Rex  v.  Ellis,  6  Barn.  &  C.  148;  Ferneaux  v.  Hutchins,  2 
Cowp.  807;  .Z?0<?  v.  Sisson,  12  East,  62;  Butler  v.  UMraW,  80  U. 
S.  13  Wall.  457,  20  L.  ed.  629;  Standard  Oil  Co.  v.  Van  Etten, 
107  IT.  S.  325,  27  L.  ed.  319;  Eaton  v.  New  England  Teleg.  Co. 

68  Me.  63;  Segar  v.  Zvfkin,  77  Me.  142;  Wiggin  v.  Scammon, 
27  K  H.  360;  2KB  v.  Cronvpton,  119  Mass.  376;  Peqpfe  v.  Nor- 
ton, 64  K  Y.  610;  i&ad  v.  ifeejbw,  67  N.  Y.  182;  Pratt  v.  Rich- 
ards  Ji  ir,  !,■;/  Co.  69  Pa.  53;   Arnold  v.  Macungie  Sav.  Bank, 

71  Pa.  287;  Brooke  v.  Winters,  39  Md.  505;  Tompkins  v.  Starr, 
41  Ohio  St.  305;  Comstock  v.  Smith,  20  Mich.  338;  Welch  v.  Far*?, 
32  Mich.  77;    Willoughby  v.  Dewey,  54  111.  266;  Hough  v.  CW&, 

69  111.  581;  7/o#  v.  Stanley,  86  Ind.  219;  6>^e  v.  Brooks,  87  Ind. 
600,  44  Am.  Rep.  778;  Hancock  v.  TT^7«m,  39  Iowa,  47;  Mann 
v.  Sioux  City  &  P.  R.  Co.  46  Iowa,  637;  Johnson  v.  Filkington, 
39  Wis.  62;  Blakely  v.  Frazier,  20  S.  C.  144;  Baker  v.  Lyman, 
53  Ga.  339;  &?/«2a,  7?.  cfe  D.  R.  Co.  v.  Zi^A,  53  Ga.  178;  Ashley 
v.  Martin,  50  Ala.  537;  Shealy  v.  Edwards,  75  Ala.  411;  Fergu- 
son v.  Thacher,  79  Mo.  511. 

Restating  the  above  proposition  we  may  say  that  facts  showing 
the  existence  of  any  state  of  mind,  such  as  intention,  knowledge, 
good  faith,  negligence,  rashness,  ill-will  or  good-will  against  any 
particular  person,  or  showing  the  existence  of  any  state  of  body 
or  bodily  feeling  are  relevant,  when  the  existence  of  auy  such 
state  of  mind  or  body  or  bodily  feeling,  is  a  fact  in  issue  or  rele- 
vant to  the  issue. 

Any  other  facts  are  relevant  from  which  the  facts  in  issue  are 
presumed,  or  are  logically  inferable,  or  which,  having  regard  to 
the  relation  of  cause  and  effect,  or  the  ordinary  motives  of  human 
conduct,  or  the  usual  sequence  of  events,  would,  considered  by 
themselves,  create  a  probability  with  respect  to  the  facts  in  issue. 
Set-  noti .  page  74. 

§  41.  The  Attributes  of  Relevancy. — To  invest  evidence 
with  the  attribute  of  relevancy,  it  must  have  a  manifest  tendency 
To  prove  or  disprove  the  allegations  of  the  indictment.  Adhesion 
to  this  rule  will  exclude  proof  of  collateral  facts  incapable  of  gen- 
erating a  legitimate  presumption,  that  they  will  connect  them- 
selves with  the  question  in  dispute.     A  fact  sought  to  be  estab- 


KELEVANCY.  71 

lished  may  be  very  remote  in  point  of  time  and  place  from  the 
issues  involved,  but  if  the  trial  court  can  still  detect  in  the  evi- 
dence offered  a  tendency  to  explain  the  issue,  sound  policy  would 
insist  upon  its  admissibility.  Proffered  evidence  is  always  rele- 
vant which  seeks  to  show  a  motive  for  the  crime  charged.  Green 
v.  State,  12  Tex.  App.  51;  White  v.  State,  72  Ala.  195;  Russell 
v.  State,  11  Tex.  App.  288;  State  v.  Dearborn,  59  X.  II.  31S. 

Ordinarily  the  improper  admission  of  evidence  in  favor  of  one 
party  is  no  excuse  for  the  subsecpient  admission  of  illegal  testi- 
mony on  the  other  side.  But  the  supreme  judicial  court  of 
Maine  has  held  that  if  prejudicial  evidence  is  admitted  without 
objection  on  one  side,  the  other  party  is  entitled  to  introduce  evi- 
dence however  remote  it  may  be  from  the  main  issue  to  contra- 
dict it.  This  view  should  meet  with  unanimous  approval.  State 
v.  Witham,  72  Me.  531. 

"It  is  sufficient,  in  order  to  make  a  question  relevant,  that  the 
answer  which  it  seeks  to  elicit  will  tend  in  some  sensible  degree 
to  prove  or  disprove  the  fact  in  issue.  It  is  not  necessary  that  the 
answer,  if  believed,  should  in  itself  afford  complete  proof.  It 
may  be  corroborative  testimony  merely,  or  a  single  link  in  a  chain 
of  circumstances,  or  a  single  fact  in  a  collection  of  facts,  neither 
of  which  is  sufficient  in  itself,  but  all  of  which,  when  taken  col- 
lectively, may  be  of  sufficient  probative  force  to  carry  conviction 
to  the  minds  of  the  jurors.  If,  therefore,  the  answer  to  a  ques- 
tion may  tend  to  prove,  or  may  form  part  of  the  proof  of  the 
matters  alleged,  though  not  wholly  sufficient  to  prove  them,  the 
question  may  be  asked."     Seller  v.  Jenkins,  97  Ind.  130. 

So  it  is  not  error,  in  a  criminal  case,  for  the  trial  court  to 
receive  relevant  evidence,  notwithstanding  the  witness  has  vio- 
lated an  order  of  the  court  to  remain  outside  of  the  court  room 
while  other  witnesses  were  testifying.  He  may  be  punished  for 
disobeying  a  rule  of  the  court,  but  the  state  or  the  defendant 
should  not  be  deprived  of  his  evidence.  State  v.  Folk,  40  Kan. 
498. 

Any  facts  tending  to  prove  the  main  fact,  and  contemporaneous 
and  connected  with  it,  are  admissible  as  a  general  rule.  All 
relevant  and  material  evidence  must  be  received;  and  evidence  is 
not  to  be  rejected  because  it  fails  to  be  conclusive;  it  is  sufficient 
if  it  fairly  tends  to  prove  a  point  sought  to  be  established.  Tes- 
timony in  reference  to  similar  transactions  is  admissible  to  show 


72  LAW    OF    EVIDENCE    IN    CRIMINAL    CASES. 

the  criminal  intent  of  a  party,  where  other  transactions  of  the 
same  general  character  and  connected  therewith  are  investigated. 
Am.  &  Eng.  Enc.  Law,  title  Criminal  Procedure,  snbdiv.  15. 
See  also  Reg.  v.  McCarthy,  2  Car.  &  K.  379,  1  Den.  C.  C. 
453;  Roscoe,  Crim.  Ev.  876;  Beg.  v.  Weeks,  Leigh  &  C.  18;  Com. 
v.J!  nkms,  76  Mass.  485;  Osborne  v.  People,  2  Park.  Crim.  Rep. 
583;  Wood  v.  United  States,  14  II.  S.  16  Pet.  360,  10  L.  ed.  994; 
Bex  v.  Ellis,  6  Barn.  &  C.  145;  Beg.  v.  Foster,  2  Eng.  L.  &  Eq. 
548;  Beg.  v.  Cobden,  3  Fost.  &  F.  833;  Bex  v.  Dunn,  1  Moody, 
C.  C.  146;  Bex  v.  Davis,  6  Car.  &  P.  171;  People  v.  Bando,  3- 
Park.  Crim.  Pep.  336;  People  v.  Nichol,  1  Fost.  &  F.  51;  People 
v.  Jlopson,  1  Denio,  574. 

The  declarations  of  a  party  to  a  civil  or  criminal  proceeding,  in 
respect  to  matters  within  his  own  knowledge,  or  of  which  he  may 
be  presumed  to  have  knowledge,  and  relevant  to  the  issue,  are 
always  competent  against  him.  Coleman  v.  People,  58  1ST.  Y.  555. 
Evidence  is  not  to  be  rejected  because  it  fails  to  be  conclusive;  it 
is  sufficient  if  it  fairly  tends  to  prove  a  point  sought  to  be  estab- 
lished.    Com.  v.  Sawtelle,  141  Mass.  140. 

As  tending  to  prove  a  point  sought  to  be  established,  the  entries 
of  a  person  since  deceased,  made  at  or  near  the  time  of  a  transac- 
tion, when  he  may  be  presumed  to  know  the  facts  stated  therein, 
may  be  read  as  evidence  of  the  facts  stated  if  it  appears  that, 

(1)  the  entry  was  made  in  the  ordinary  course  of  business;  or, 

(2)  that  it  was  made  in  a  professional  capacity,  and  in  the  ordi- 
narv  course  of  professional  conduct;  or, 

(3 1  that  it  was  made  in  the  performance  of  a  duty  imposed  by 
lawful  authority.     And  further 

(4)  any  act,  declaration,  or  omission  of  a  party  against  his  inter- 
est is  relevant,  and  hence  admissible. 

§  42.  Offer  of  Proof. — Where  counsel  offer  to  prove  a  certain 
fact  and  the  relevancy  of  the  evidence  is  not  apparent,  the  court 
may  require  him  to  disclose  the  substance  and  on  its  satisfactorily 
appearing  that  it  will  connect  itself  legitimately  with  the  question 
in  the  case  it  should  be  admitted.  If  it  is  rejected  an  exception 
should  be  duly  entered  as  in  civil  eases,  and  on  appeal  the  materi- 
ality of  the  rejected  evidence  must  be  shown.  Morgan  v. 
Browne,^  Pa.  130;  Jackson  v.  Hardin,  S3  Mo.  175;  United 
States  v.  Gibert,  '1  Sumn.  20. 

"A  party  having  a  witness  on  the  stand,  may  be  called  upon 


RELEVANCY.  73 

by  his  adversary  to  state  what  he  proposes  to  prove,  and  in 
that  case  he  must  state  it.  But  he  need  make  no  such  state- 
ment unless  called  upon  to  do  so.  It  is  enough  for  him  to  pro- 
ceed and  put  his  questions  to  the  witness  unless  desired  to 
state  what  he  expects  to  prove.  It  will  not  be  presumed  that  an 
improper  question  will  be  asked  him."  But,  offers  to  prove  con- 
versations between  third  persons,  tending  to  implicate  the  defend- 
ant, but  not  had  in  his  presence,  are  not  admissible  as  evidence 
against  him,  even  if  they  did  not  relate  to  the  particular  offense 
with  which  he  is  charged,  they  would  be  inadmissible  because 
irrelevant.     Tolbert  v.  State,  87  Ala.  27. 

AVhen  the  admissibility  of  testimony  depends  upon  the  determi- 
nation of  a  prior  fact  by  the  court,  such  prior  fact  need  not  be 
established  by  a  weight  of  evidence  amounting  to  a  demonstra- 
tion. It  is  only  necessary  that  there  should  be  so  much  evidence 
as  to  make  it  proper  to  submit  the  whole  testimony  to  the  jury. 
Com.  v.  Robinson,  140  Mass.  571. 

Precedent  acts  which  render  the  commission  of  the  crime 
charged  more  easy,  more  safe,  more  certain,  more  effective  to 
produce  the  ultimate  result  which  formed  the  general  motive  and 
inducement,  if  done  with  the  intention  and  purpose,  have  such  a 
connection  with  the  crime  charged  as  to  be  admissible,  though 
they  are  also  of  themselves  criminal.  Com.  v.  Scott,  123  Mas-;, 
222,  25  Am.  Hep.  81;  Com.  v.  Choate,  105  Mass.  451;  Swan  v. 
Com.  104  Pa.  21S;  Goersen  v.  Com.  99  Pa,  3SS:  Shaffner  v.  Com. 
72  Pa.  60,  13  Am.  Eep.  649;  Mayer  v.  People,  SO  jST.  Y.  364. 
See  also  Jordan  v.  Osgood,  109  Mass.  457.  For  cases  where 
such  connection  was  not  shown,  but  where  the  principle  was  rec- 
ognized, see  Com.  v.  Jackson,  132  Mass.  16;  State  v.  Lapage,  57 
K  H.  245,  24  Am.  Eep.  69;  People  v.  Sharp,  (per  Peckham,  J.)Y 
107  K  Y.  427. 

"Where  the  relevancy  of  evidence  is  brought  in  question,  it  is 
the  duty  of  the  court  to  indulge  a  preliminary  examination  as  to 
its  competency,  and  this  may  be  conducted  in  the  presence  of  the 
jury;  but  during  it  they  stand  simply  in  the  attitude  of  spectators, 
with  the  testimony  given  them  have  no  concern,  it  being  merely 
for  the  information  of  the  court,  and  until  by  its  ruling  some  por- 
tion of  it  is  presented  to  the  jury  as  competent  evidence  in  the 
case,  there  is  nothing  to  which  the  defendant  may  except  as  con- 
stituting legal  error.     It  is  within  the  discretion  of  the  court  to 


-74 


LAW    OF    EVIDENCE    IN    CRIMINAL    CASES. 


-determine  how  far  the  examination  shall  extend.  The  exercise 
of  that  discretion  is  not  reviewable  unless  it  appears  that  snch 
discretion  was  abused,  and  the  action  of  the  court  arbitrary  and 
unreasonable.     People  v.  Smith,  104  N.  T.  491. 

Where  evidence  is  received  for  no  specific  purpose  it  is  not 
•error  to  receive  it  if  it  is  admissible  for  any  purpose.  Starkei/s 
App.  61  Conn.  199. 

All  questions  of  law,  including  the  relevancy  of  evidence,  the 
determination  of  such  relevancy,  the  construction  of  statutes  and 
writings,  and  of  all  rules  of  evidence,  are  to  be  decided  by  the 
•court,  and  all  discussions  of  law  addressed  to  it.  Whenever  a 
fact  is  assumed  to  be  known  to  the  court,  the  court  is  to  declare 
its  knowledge  to  the  jury,  who  are  bound  to  accept  it. 

§  43.  Indecency  no  Ground  for  Excluding  Testimony. — 
Mr.  Taylor  (§  867)  adopts  from  Professor  Greenleaf  the  state- 
ment that  "the  law  excludes  on  public  grounds  * 
■evidence  which  is  indecent  or  offensive  to  public  morals,  or  in- 
jurious of  the  feelings  of  third  persons."  The  authorities  given 
for  this  are  actions  on  wagers  which  the  court  refused  to  try,  or 
in  which  they  arrested  judgment,  because  the  wagers  were  in 
themselves  impertinent  and  offensive,  as,  for  instance,  a  wager  as 
to  the  sex  of  the  Chevalier  D'Eon  Da  Costa  v.  Jones,  Cowp.  729; 
Stephen's  Digest,  art.  2,  note  11. 

In  the  recent  case  of  State  v.  Markins,  95  Ind.  464,  48  Am. 
Rep.  733,  735,  it  was  held  that  the  chief  element  of  the  offense 
charged  consists  in  illicit  intercourse  between  the  sexes  evidence 
of  previous  lascivious  conduct  of  the  parties  is  admissible.  Ab- 
bott's Criminal  Brief,  citing  People  v.  Jenesse,  5  Mich.  305;  Law- 
son  v.  Statt ,  20  Ala.  65,  56  Am.  Dec.  182;  Thayer  v.  Thayer,  101 
Mass.  Ill  ;  State  v.  Bridgman,  49  Yt.  202,  24  Am.  Rep.  124; 
State  v.  Pippin,  88  X.  C.  646;  State  v.  Kemp,  87  K  C.  538. 

The  position  taken  by  Professor  Greenleaf  on  this  subject  is 
utterly  indefensible,  and  this  condemnation  is  judicially  expressed 
by  Sir  James  Stephen  when  he  says:  "I  know  of  no  case  in 
which  a  fact  in  issue  or  relevant  to  an  issue,  which  the  court  is 
bound  to  try,  can  be  excluded  merely  because  it  would  pain  some 
•one  who  is  a  stranger  to  the  action."  Stephen,  Dig.  (Chase's  ed.) 
art.  2,  note  2.     Rice,  Civil  Evidence,  §  257. 

Judge  Thompson  very  aptly  observes:  '"The  fact  that  evidence 
is  indecent  is  no  objection  to  its  being  received,  where  it  is  nee- 


RELEVANCY.  75 

■essary  to  justice.  But  it  is  proper  for  the  trial  court  to  refuse  to 
permit  indecent  questions  to  be  put  to  children  on  the  witness 
stand,  nor  will  the  court  commit  error  in  refusing  to  compel  a 
female  witness  testifying  upon  an  indelicate  subject,  to  couch  her 
answers  in  indecent  language,  although,  if  so  expressed,  her  an- 
swer would  be  more  direct  though  not  necessarily  more  intelli- 
gible." Thomp.  Trials,  §  356.  Citing,  inter  alia,  People  v. 
White,  53  Mich.  537;  State  v.  Laxton,  7S  X.  C.  564. 

Evidence,  if  relevant,  is  not  excluded  on  account  of  its  indeli- 
cacy or  indecency.  Although  courts  may  not  refuse  to  consider 
details,  however  offensive  and  disgusting,  if  they  become  neces- 
sary in  the  course  of  investigation,  yet  they  should  always  require 
the  witnesses  to  be  examined  in  a  spirit  of  due  delicacy,  avoiding 
vulgar  and  obscene  language.  So  a  wife,  if  competent,  may  prove 
excessive  intercourse;  it  is  public  policy  which  prevents  a  husband 
or  wife  from  proving  non-access.  Stewart.  Mar.  &  Div.  §  34S, 
citing  Melvin  v.  Melvin,  58  X.  II.  569;  DaCosta  v.  Jones,  Cowp. 
729;  Inglis  v.  Inglis,  15  Week.  Rep.  1093;  Abernathy  v.  Aber- 
nathy,  8  Fla.  243;  Corson  v.  Corson,  44  X.  II.  5ST;  Chamberlain 
v.  People,  23  N.  Y.  85,  80  Am.  Dee.  255. 

It  may  be  stated  in  general  that  the  law  excludes,  on  public 
grounds,  evidence  which  is  indecent  or  offensive  to  public  morals 
or  injurious  to  the  feelings  of  third  persons,  the  parties  them- 
selves having  no  interest  in  the  matter,  except  what  they  have 
impertinently  created.  Yet  the  mere  indecency  of  disclosure 
does  not  exclude,  where  the  evidence  is  necessary  for  the  purpose 
of  civil  or  criminal  justice,  as  on  an  indictment  for  rape,  or  on  a 
question  of  sex  of  one  claiming  an  estate  tail,  as  heir,  male  or  •fe- 
male, or  upon  the  legitimacy  of  one  claiming  as  lawful  heir;  or  on 
a  petition  for  dissolution  of  marriage  or  judicial  separation,  or 
for  damages  on  the  ground  of  adultery.  In  these  and  similar 
cases  the  evidence  is  necessary  either  for  the  punishment  of  crime 
or  for  the  vindication  of  rights  existing  before  or  independent  of 
the  fact  sought  to  be  disclosed.  Hagernan,  Privileged  Communi- 
cations, §  185,  citing  20  &  21  Vict.  chap.  85,  §§  16,  27,  33. 

Note. — A  well  considered  article  in  6  Central  Law  Journal,  embodies  a  dis- 
cussion of  this  subject,  aud  while  it  lacks  the  weight  and  influence  accorded  to 
a  judicial  determination  it  well  merits  high  consideration  as  a  logical  pr< 
tion  of  a  vexed  and  subtle  distinction,  that  many  courts  attempt  to  sustain  in 
criminal  proceedings.  The  article  is  based  upon  and  was  inspired  by  the  case 
of  State  v.  Cowell,  decided  by  Supreme  Court  of  Nevada  in  1878,  and  report!  d 


76  LAW   OF   EVIDENCE   IN   CKIMINAL   CASES. 

in  12  Nev.  337.  The  writer  characterizes  this  case  as  the  last  of  a  series,  "in 
■which  judges  seem  to  have  striven  for  the  practical  overthrow  of  the  well  set- 
tled rule  of  criminal  law  that  the  evidence  must  he  confined  to  the  issue." 

"In  this  case,  as  well  as  in  all  others  of  the  class  to  which  it  belongs,  the  ex- 
istence and  binding  force  of  that  rule  is  recognized;  but  the  judges  demonstrate 
to  their  own  satisfaction  that  it  is  not  infringed  by  the  introduction  of  evidence 
showing  that  a  prisoner  has  committed  or  agreed  to  commit  an  offense  uncon- 
nected  with  the  one  for  which  he  is  on  trial.  They  shelter  themselves  behind 
the  rule  which  forbids  the  exclusion  of  evidence,  in  other  respects  admissible, 
merely  because  it  shows,  or  tends  to  show,  that  the  prisoner's  character  is  bad, 
and  allows  the  prosecution,  in  certain  cases,  to  show  that  the  accused  has  com- 
mitted, or  agreed  to  commit  a  crime  other  than  the  one  for  which  he  is  on  trial. 
They  tell  us  that  one  of  the  cases  in  which  this  may  be  allowed,  is  where  such 
evidence  'tends  to  throw  light  on  what  were  the  prisoner's  motives  and  inten- 
tiou  in  doing  the  act  complained  of,'  and  conclude  that  the  evidence  decided  to 
be  admissible  has  this  tendency. 

"  Such  is  the  position  of  the  supreme  court  of  Nevada  in  the  case  in  question. 
Whether  it  be  correct  or  incorrect  wTe  shall  proceed  to  consider. 

"  While  the  writer  does  not  believe  that  courts  should  so  closely  confine  the 
evidence  to  the  particular  transaction  charged  that  the  ends  of  justice  shall  be 
defeated  and  the  guilty  shielded,  he  is  far  from  believing  that  they  should  go 
to  the»other  extreme. 

"  The  'safe  middle  course'  should  be  followed.  On  the  one  hand,  evidence 
having  a  legitimate  tendency  to  show  a  guilty  purpose  should  not  be  excluded, 
and  when  other  crimes  commited  by  the  prisoner  are  so  closely  connected  with 
the  one  for  which  he  is  on  trial  that  they  can  justly  be  said  to  throw  light  on  his 
motives  in  doing  the  act  complained  of,  evidence  of  their  commission  should  be 
allowed  to  go  to  the  jury.  On  the  other  hand,  the  dictates  of  justice  and  hu- 
manity require  that  the  prosecution  should  not  be  allowed,  by  showing  that  the 
prisoner  has  committed  a  wholly  disconnected  offense,  to  induce  the  jury  to 
convict  him  of  a  crime  which  he  did  not  commit,  because  he  deserves  punish- 
ment for  another  which  he  did  commit. 

"  The  rule  is  too  well  settled  to  admit  of  dispute  that  the  commission  of  one 
offense  cannot  be  given  in  evidence  on  the  trial  of  a  person  for  another,  merely 
for  the  purpose  of  inducing  the  jury  to  believe  that  the  prisoner  committed  one 
offense,  because  he  committed  one  of  the  same  nature  on  another  occasion. 

"After  a  careful  investigation  of  the  subject  the  writer  is  forced  to  conclude 
that  in  the  case  of  State  v.  Cowell,  this  rule  was  violated. 

"  What  bearing  on  the  question  of  a  man's  intent  in  entering  a  house  has  the 
fact  that  three  days  before  such  entry  he  agreed  with  others  to  rob  the  owner  of 
the  house  on  the  street?  Does  it  show  that  his  intent  was  to  steal?  Decidedly 
not,  unless  the  fact  that  a  man  is  bad  enough  to  steal  tends  to  show  that  he  en- 
tered a  house  for  that  purpose.  If  the  evidence  of  the  agreement  to  rob  had  no 
more  bearing  on  the  question  of  intent  than  this,  it  should  not,  as  we  have  al- 
ready seen,  been  received.  Had  it  any  more  bearing?  The  writer  thinks  not, 
and  his  views  are  sustained  by  decisions  of  undoubted  authority." 

Here  follows  a  collation  of  apt  authorities  beginning  with  Einchelow  v.  State, 
5  Humph.  9,  where  it  was  held  that  an  accomplice  could  not,  with  a  view  tO' 
sustain  his  testimony,  be  permitted  to  narrate  other  instances  of  crime  proposed 
to  him  by  the  defendant,  though  made  in  the  same  conversation  in  which  the 


RELEVANCY.  77 

■crime  charged  was  proposed.  The  court  in  its  decision,  said:  "The  only  ob- 
ject of  such  testimony  necessarily  is  to  prejudice  the  minds  of  a  jury,  as  it  can 
by  no  possibility  establish  or  elucidate  the  crime  charged.  We  can  well  see 
how  a  jury  who,  in  the  case  under  consideration,  might  have  unhesitatingly 
refused  to  find  a  verdict  against  the  prisoner  upon  the  evidence  of  the  witness 
confined  within  its  legitimate  scope,  may  have  been  misled  by  the  proof  of  the 
utter  baseness  and  want  of  principle  as  detailed  against  him." 

In  People  v.  Corhin,  56  N.  Y.  3G3,  15  Am.  Rep.  427,  it  was  held  that  upon  a 
trial  for  forgery,  the  confession  of  the  prisoner  that  he  had  committed  other 
forgeries  was  not  admissible  on  the  question  of  criminal  intent. 

In  Bonsall  v.  State,  35  Ind.  460,  it  was  held  that  on  the  trial  of  the  prisoner 
for  a  robbery  committed  on  December  lGth,  it  was  error  to  allow  the  prosecu- 
tion to  show  a  second  robbery  of  the  prosecutor  by  the  prisoner  on  the  follow- 
ing day. 

In  People  v.  Barnes,  48  Cal.  551,  it  was  held  error  for  the  trial  court  to  admit 
evidence  showing  that  on  the  night  previous  to  that  on  which  the  burglary  for 
which  he  was  on  trial  was  committed,  the  prisoner  entered  the  prosecutor's  room 
and  stole  a  sum  of  money. 

In  Barton  v.  State,  18  Ohio,  221,  it  was  held  that  upon  the  trial  of  the  pris- 
oner for  stealing  a  horse,  evidence  that  he  had  on  the  night  of  the  day  previous 
to  that  on  which  the  horse  was  taken,  stolen  a  sum  of  money,  was  inadmissi- 
ble. In  holding  that  such  evidence  was  not  admissible  on  the  question  of  the 
prisoner's  intent  in  taking  the  horse,  the  court  say:  "Although  the  court,  in' 
this  instance,  say  that  the  evidence  was  only  admitted  for  the  purpose  of  show- 
ing the  intent  with  which  the  defendant  got  possession  of  the  property,  yet  we 
do  not  see  any  connection  between  the  two  transactions  that  would  enable  any 
legitimate  conclusion  to  be  drawn  as  to  that  fact.  The  ouly  conclusion  we  can 
see  that  could  fairly  be  drawn  from  the  evidence,  would  be  that  the  defeudant 
intended  to  steal  the  horses  and  other  property  with  which  he  was  charged,  be- 
cause he  was  a  thief  and  had  just  before  stolen  a  sum  of  money.  Each  case 
must  be  tried  on  its  own  merits  and  be  determined  by  the  circumstances  con- 
nected with  it,  without  reference  to  the  character  of  the  party  charged,  or  the 
fact  that  he  may  have  previously  committed  similar  crimes.  On  the  part  of  the 
prosecution  the  general  bad  character  of  the  defendant  cannot  be  proved,  when 
he  offers  no  evidence  of  character;  much  less  can  particular  acts  of  his  be  proved 
of  which  the  record  gives  him  no  notice  and  which  he,  therefore,  cannot  be 
expected  to  meet."  See  also  on  this  point,  Coleman  v.  People,  55  N.  Y.  81; 
People  v.  Bowen,  49  Cal.  654;  People  v.  Jones,  31  Cal.  565;  Fairer  v.  State,  2 
Ohio  St.  54;  State  v.  Merrill,  13  N.  C.  269;  State  v.   Wisdom,  8  Port.  (Ala.)  511. 

A  resort  to  the  very  valuable  annotation  of  section  1,  Stephen's  Digest  by 
Judge  May,  will  disclose  a  supplementary  discussion  of  this  somewhat  con- 
fused topic  of  "  Relevancy,"  but  along  other  lines  of  investigation  than  those 
indicated  in  the  preceding  note, — as  instance  the  following: — 

There  seems  to  be  no  general  test  of  relevancy.  What  is  relevant  on  one 
issue  is  not  relevant  on  the  other.  When  the  issue  is  fraud,  great  latitude  is 
allowed  in  the  proof  of  circumstances.  Peels  v.  Knight,  8  Mart.  N.  S.  267.  Cir- 
cumstances so  trivial  and  remote  in  themselves,  that,  if  individually  and  sepa- 
rately offered,  they  might  justly  be  rejected,  may,  from  their  multitude  and 
relation,  become  important  and  obviously  relevant.  Slate  v.  Watkins,  9  Conn. 
52.    Especially,  in  cross-examination,  when  it  becomes   important  to  show 


78  RELEVANCY. 

■who  and  what  and  how  related  to  the  case  the  witness  is  or  may  be,  are  many 
questions  relevant  which  otherwise  would  not  be  relevant.  The  decisions  of 
courts  of  last  resort  afford  no  data,  and  have  no  such  uniformity  or  similarity 
as  to  afford  the  grounds  of  a  general  rule.  What  they  decide  to  be  relevant 
or  irrelevant  is  or  is  not  so,  for  the  particular  case  and  within  their  jurisdic- 
tion, and  to  that  extent  only.  A  few  cases,  showing  what  has  and  what  has  not 
been  deemed  relevant,  will  serve  to  illustrate  this  remark.  It  will  generally 
be  found  that  the  circumstances  of  the  parties  to  the  suit  at  the  time  of  the 
controversy  are  relevant.  On  the  trial  of  an  action  for  work  done  and  mate- 
rials supplied  to  certain  houses  on  the  orders  of  a  third  person,  the  defendant 
denying  that  he  is  the  owner  of  the  houses,  or  the  real  principal,  evidence  is 
relevant  that  other  persons  had  received  orders  from  the  defendant  to  do  work 
at  the  same  houses,  without  showing  that  the  plaintiff  knew  of  those  orders  at 
the  time  he  did  his  work.  But  if  the  orders  had  been  to  do  work  upon  other 
houses,  it  seems  they  would  not  have  been  relevant.  Woodman  v.  Buchanan, 
L.  R.  5  Q.  B.  585;  Bowling  v.  Bowling,  10  Ir.  L.  Rep.  236.  The  question  being 
whether  A  loaned  money  to  B,  the  fact  of  A's  property  at  the  time  of  the 
alleged  loan  is  relevant.  Bowling  v.  Bowling,  supra.  The  question  be- 
ing to  which  of  two  persons  the  plaintiff  gave  credit,  the  facts  that  he  had 
already  before  brought  suit  upon  the  same  demand  against  one,  is  relevant,  as 
showing  that  he  did  not  give  credit  to  the  other.  Head  v.  Taylor,  Litt.  Sel. 
Cas.  258.  On  proof  that  the  defendant  was  at  a  certain  place  where  he  might 
have  committed  an  alleged  trespass,  it  is  relevant  to  show  that  he  was  there 
from  another  motive  than  to  commit  it.  Prindle  v.  Glover,  4  Conn.  266;  Tracy 
MbManus,  58  N.  Y.  257.  The  fact  that  A  usually  procured  and  paid  for  the 
board  of  the  workmen  in  his  employ  at  other  boarding  houses,  is  relevant  on 
the  question  of  his  indebtedness  for  the  board  of  those  boarding  with  B. 
B (eight  v.  Brown,  9  Conn.  83.  The  question  being  whether  A  caused  B  to  mis- 
carry, by  violence,  the  fact  that  B  had  several  times  before  miscarried,  without 
violence,  is  relevant.  Slattery  v.  People,  76  111.  217.  Stephen,  Dig.  (May's 
ed.)  Chap.  1,  art.  1,  note.  For  further  exposition  of  this  subject  see  1  Rice.. 
Civil  Evidence,  chap.  12. 


CHAPTER  VIII. 

LETTERS. 

|  44.  Present  little*  Regarding  Letters. 

45.  Importance  of  Letters. 

46.  Originals  Must  be  Produced  or  Accounted  for. 

47.  Letter-press  Copies. 

48.  Foundation  for  Secondary  Evidence  of  ( 'ontents. 

49.  Views  of  the  Massachusetts  Supremt  Court. 

50.  Mailing  Letters  Raises  the  Presumption  of  Receiving, 

51.  Genuineness  Must  be  Shown. 

52.  Unanswered  Letters. 

53.  Failure  to  Answer  as  Admission. 

54.  Extract  from  a  Lost  Letter. 

55.  Decoy  Letters. 

56.  Miscellaneous  Authorities. 

§  44.  Present  Rules  Regarding  Letters. — Letters  as  "writ 
ing."  A  letter  is  certainly  a  "writing,"  if  addressed  by  one  person 
to  another.  While  we  may  call  it  a  letter,  it  is  also  a  writing, 
whether  the  characters  are  made  with  the  pen.  by  type,  or  in  any 
other  manner.  United  States  v.  Gaylord,  17  Fed.  Rep.  441:. 
United  States  v.  Britton,  17  Fed.  Rep.  732. 

The  word  "letter"  will  include  the  envelope  in  which  it  is 
sent;  as,  in  a  notice  to  produce  a  letter.  United  States  v.  Duff, 
19  Blatchf.  10. 

The  postmark  on  a  letter  is  prima  facie  evidence  that  the  letter 
was  in  the  postoffice  at  the  time  and  place  specified.  New  II 
Count tj  Bank  v.  Mitchell,  15  Conn.  206;  Bussa/rd  v.  Levering, 
19  U.  S.  6  Wheat,  102,  5  L.  ed.  215;  Lindenberger  v.  Beall,  L9 
U.  S.  6  Wheat.  104,  5  L.  ed.  216;  Biggs  v.  Match,  16  Fed.  Rep. 
838,  842,  850;  Rosenthal  v.  Walker,  ill  U.  S.  193,  28  L.  ed.398; 
Montelius  v.  Atherton,  C  Colo.  227;  Breed  v.  First  Sat.  Bank, 
6  Colo.  235. 

If  a  letter  is  sent  by  post,  it  is  presumed  from  the  known  course 
in  that  department  of  the  public  service  that  it  reached  its  desti- 
nation at  the  regular  time,  and  was  received  by  the  person  to 
whom  it  was  addressed.     Breed  v.  Fird  Nat.  Ban]:,  supra. 

79 


80  LAW    OF    EVIDENCE    IN    CRIMINAL    CASES. 

§  45.  Importance  of  Letters. — Letters  frequently  disclose 
facts  that  are  well  calculated  to  unfold  and  develop  the  nature  of 
a  transaction,  and  they  should  be  admitted  as  part  of  the  res 
gestae,  notwithstanding  they  contain  declarations  in  a  party's  favor. 
Beaver  v.  Taylor,  68  U.  S.  1  Wall.  637,  17  L.  ed.  601. 

Although  a  letter  contains  a  statement  as  to  an  alleged  agree- 
ment made  after  the  date  when  an  agreement  was  made,  it  is  still 
admissible  as  part  of  the  res  gestae.  McCotter  v.  Hooker,  8  !N.  Y. 
497;  Palmer  v.  First  Nat.  Bank,  4  K  Y.  Week.  Dig.  268; 
Jewell  v.  Jewell,  42  U.  S.  1  How.  219,  232,  11  L.  ed.  108,  114; 
Com.  v.  McPike,  3  Cush.  181, 1  Am.  Eep.  727;  Com.  v.  JIaekett, 
2  Allen,  136;  Tompkins  v.  Saltmarsh,  14  Serg.  &  R.  275;  Paw- 
son  v.  Eaigh,  2  Bing.  99,  104;  Pidley  v.  Gyde,  9  Bing.  349; 
Pouch  v.  Great  Western  P.  Co.  1  Q.  B.  51;  Thorndike  v.  Boston, 
1  Met.  242,  247;  Doe  v.  Arkwrigld,  5  Car.  &  P.  575. 

§  46.  Originals  Must  be  Produced  or  Accounted  for. — The 
mere  fact  that  a  party  keeps  letter-press  copies,  does  not  relieve 
him  from  the  necessity  of  producing  the  original,  or  of  laying 
foundation  in  the  ordinary  usual  way,  for  the  reception  of  second- 
ary evidence.  Foot  v.  Bentley,  44  K  Y.  171,  4  Am.  Rep.  652; 
King  v.  Worthington,  73  111.  161;  Watkins  v.  Paine,  57  Ga.  50; 
Delaney  v.  Erlc'kson,  10  Neb.  492;  Ward  v.  Beads,  14  Neb.  114. 
And  in  Maryland  it  is  held  that,  to  entitle  a  party  to  the  intro- 
duction of  secondary  evidence,  the  opposite  party  must  have  been 
served  with  a  notice  to  produce  the  original  document;  and, 
further,  that  some  proof  must  be  adduced  that  this  notice  was 
received.     Marsh  v.  Hand,  35  Md.  123. 

This  entire  topic  is  the  subject  of  an  extended  note  appended 
to  the  case  of  the  Oregon  SS.  Co.  v.  Otis,  14  Abb.  K  C.  388,  53 
Am.  Rep.  221. 

§  47.  Letter-press  Copies.— A  sworn  copy  of  a  letter-press 
copy  of  a  lost  letter  is  competent  as  evidence  of  the  contents  of 
the  letter,  without  producing  the  letter-press  copy.  Goodrich  v. 
Weston,  102  Mass.  362,  3  Am.  Rep.  469.  This  is  upon  the 
ground  that  there  are  no  grades  of  secondary  evidence.  When- 
ever a  copy  of  a  record  or  document  is  itself  made  original  or 
primary  evidence,  the  rule  is  clear  and  well  settled  that  it  must 
be  a  copy  made  directly  from  or  compared  with  the  original.  If 
the  first  copy  be  lost  or  in  the  hands  of  the  opposite  party,  so  long 
as  another  may  be  obtained  from  the  same  source,  no  grounds  can 


LETTERS.  '  81 

be  laid  for  resorting  to  evidence  of  an  inferior  or  secondary  char- 
acter. 3  Waite,  Law  &  Pr.  (5th  ed.)  444.  So  when  secondary 
■evidence  is  admissible,  parol  evidence  of  the  contents  of  a  docu- 
ment is  admissible,  although  there  is  a  copy  of  the  document  in 
evidence.  Doe  v.  Boss,  7  Mees.  &  W.  102,  107;  Best,  Ev.  §  87. 
But  this  rule  is  not  universally  recognized,  and  it  has  in  many 
instances  been  held  that  the  general  rule  applies  also  to  secondary 
evidence,  so  that  a  copy  of  a  copy  is  not  evidence,  although  a 
copy  of  the  original  paper  might  be,  in  some  cases.  See  People 
v.  Riley,  15  Cal.  48;  Reeve  v.  Long,  Holt,  286;  Liebman  v. 
Pooley,  1  Stark.  167;  Emringham  v.  Roundell,  2  Mood.  &  R. 
138;  Coman  v.  State,  4  Blackf.  241. 

But  though  a  press  copy  is  secondary,  it  may  be  used  as  a  means 
•of  determining  the  identity  and  genuineness  of  an  instrument. 
■Com.  v.  Jeffries,  7  Allen,  561,  S3  Am.  Dec.  712;  Whart.  Crim. 
Ev.  §  177. 

The  weight  of  authority  favors  the  contention  that  a  copy  of  a 
letter  to  the  opposite  party,  cannot  be  given  in  evidence  when  no 
notice  has  been  given  to  produce.  Chicago  v.  Greer,  76  U.  S.  9 
Wall.  726,  19  L.  ed.  769. 

§  48.  Foundation  for  Secondary  Evidence  of  Contents. — 
When  it  becomes  necessary  to  prove  the  contents  of  letters  which 
have  passed  between  parties,  the  originals  must  be  produced,  or 
the  party  desiring  to  give  proof  of  their  contents  must  lay  the 
foundation  for  secondary  evidence  in  the  ordinary  and  usual  way. 
Letter-press  copies  are  in  no  sense  original  papers,  and  cannot  be 
admitted  in  evidence  without  the  preliminary  proof.  Foot  v. 
Bentley,  44  K  T.  166,  4  Am.  Eep.  652;  Marsh  v.  Hand,  35 
Md.  123.  When  this  proof  has  been  given  these  copies  are  ad- 
mitted as  evidence. 

§  49.  Views  ot  the  Massachusetts  Supreme  Court. — The 
Massachusetts  supreme  court  has  outlined  the  prevailing  juridical 
view  relative  to  this  subject  in  an  opinion  by  Chief  Justice  Bige- 
low.  This  decision  although  rendered  in  1863,  is  unimpaired  and 
the  logic  that  originally  supported  it  retains  all  of  its  force  and 
vigor.  The  court  admitted  press  or  machine  copies  of  certain 
letters,  purporting  to  have  been  written  by  the  defendant,  to  hi: 
read  to  the  jury.  These  wereadjudgnl  competent  on  two  grounds. 
Independently  of  proof  that  the  originals  were  in  the  handwriting 
■of  the  defendant,  the  copies  were  admissible  as  documents  in  his 
6 


82  LAW    OF    EVIDENCE    IN    CKIMINAL    CASES. 

possession,  and  to  which  ho  had  constant  access.  They  therefore- 
furnished  room  for  the  inference  that  he  was  acquainted  with 
their  contents,  and  affected  him  with  an  implied  admission  of  the 
statements  contained  in  them.  This  is  the  ordinary  rule  of  law 
applicable  to  papers  found  in  the  possession  of  a  party.  1  Greenl. 
Ev.  §  198,  and  cases  cited.  Evidence  of  a  precisely  similar  char- 
acter was  admitted  without  objection  in  Com.  v.  Eastman,  1 
Cush.  189,  48  Am.  Dec.  596.  Nor  are  we  able  now  to  see  any 
valid  reason  for  excluding  it. 

But  upon  another  and  distinct  ground  the  court  was  of  opinion, 
that  the  evidence  was  admissible.  The  press  copies,  as  they  are 
called,  were  in  fact  proved  to  have  been  in  the  handwriting  of  the 
defendant.  They  were  in  truth  a  part  of  the  original  letters  as 
written  by  him,  transferred  by  a  mechanical  pressure  to  other 
sheets.  But  such  transfer  did  not  destroy  the  identity  of  the 
handwriting  as  shown  on  the  impression,  or  render  it  unrecogniz- 
able by  persons  acquainted  with  its  characteristics.  These  to  a 
considerable  extent  it  must  necessarily  still  retain,  so  that  a  person 
having  adequate  knowledge  could  testify  to  its  genuineness  with 
quite  as  much  accuracy  as  if  he  had  before  him  the  original  sheets 
on  which  the  letters  were  first  written.  Writings  thus  transferred 
are  not  unlike  written  documents  which  have  been  defaced  or 
partially  obliterated  by  exposure  to  dampness,  rough  usage,  or  the 
wasting  effect  of  time.  Such  papers  may  not  possess  all  the  dis- 
tinctive features  of  the  original  handwriting,  but  their  partial 
destruction  or  obliteration  will  not  render  them  inadmissible  as  evi- 
dence, if  duly  identified  by  testimony.  A  press  copy,  it  is  true, 
might  furnish  a  very  unsatisfactory  standard  of  comparison  by 
which  to  determine  whether  another  paper,  the  handwriting  of 
which  wTas  in  controversy,  was  written  by  the  same  person,  be- 
cause the  mechanical  process  to  which  it  had  been  subjected  in 
transferring  it  would,  by  spreading  the  ink  and  blurring  the 
letters,  necessarily  somewhat  affect  its  general  resemblance.  For 
this  reason  it  was  rejected  when  offered  for  such  purpose  in  Com. 
v.  Eastman,  1  Cush.  217,  48  Am.  Dec.  596.  But  although  in- 
competent as  a  means  of  comparison  by  which  to  judge  of  the 
characteristics  of  handwriting  which  is  in  dispute,  it  might  still 
retain  enough  of  its  original  character  to  be  identified  by  a  wit- 
ness, when  its  own  genuineness  was  called  in  question.  Com.  v. 
Jeffries,  7  Allen,  518,  83  Am.  Dec.  712. 


LETTERS.  83 

§  50.  Mailing  Letters  Raises  the  Presumption  of  Receiv- 
ing.— Letters  placed  in  designated  repositories  or  delivered  to  a 
postman,  when  duly  addressed  and  stamped,  afford  prima  facie 
evidence  that  they  were  duly  received  by  the  addressee.  Oaks 
v.  Welter,  13  Vt.  106,  38  Am.  Dec.  583;  Connecticut  v.  Bradish, 
14  Mass.  296;  Oregon  SS.  Co.  v.  Otis,  100  N.  Y.  446,  53  Am. 
Kep.  221;  Breed  v.  First  Nat.  Bank,  6  Colo.  235;  Durhee  v. 
Vermont  Cent,  B.  Co.  29  Yt.  127;  Tanner  v.  Hughes,  53  Pa. 
289;  Plath  v.  Minnesota  Farmers  Mut.  F.  Ins.  Co.  23  Minn. 
479,  23  Am.  Rep.  697;  Howley  v.  Whipple,  48  N.  H.  487;  Sulli- 
van v.  Kuykendall,  82  Ky.  483,  56  Am.  Rep.  901;  Scott  &  Jar- 
nagin,  Telegraphs,  §§  340,  341;  Allen,  Teleg.  Cas.  passim;  Bo- 
senthal  v.  Walker,  111  IT.  S.  193,  28  L.  ed.  398. 

A  letter  is  presumed  to  reach  its  destination  at  the  regular 
time,  and  to  be  received  by  the  addressee,  if  living  at  the  place 
and  usually  receiving  letters  there;  as,  in  cases  where  notice  of 
the  protest  of  paper  is  to  be  sent  to  an  indorser.  MonteUus  v. 
Atherton,  6  Colo.  227. 

If  a  letter  offered  in  evidence  purports  to  be  a  reply  to  a  letter 
referred  to,  the  letter  must  be  called  for,  in  order  to  put  in  evi- 
dence with  it.     Harvey  v.  Pennypacker,  4  Del.  Ch.  454. 

§  51.  Genuineness  must  be  Shown. — The  New  York  supreme 
court  holds  that  secondary  evidence  of  the  contents  of  a  written 
instrument,  when  allowed,  does  not  obviate  the  necessity  of  prov- 
ing the  genuineness  of  the  instrument,  but  renders  it  more  imper- 
ative. When  secondary  evidence  of  the  contents  of  a  writing  is 
admissible,  it  is  indispensable  that  the  person  by  whom  it  is  pro- 
posed to  prove  it  should  have  seen  and  read  the  writing,  and  can 
speak  from  personal  knowledge.  His  having  heard  another  per- 
son read  it  is  not  sufficient,  and  a  party  cannot  be  charged  with 
notice  of  the  contents  of  a  letter  written  and  sent  to  him,  without 
proof  that  it  was  properly  mailed  and  forwarded  to  his  address. 
Dainese  v.  Allen,  14  Abb.  Pr.  K  S.  303. 

The  placing  of  a  communication  in  a  box  used  by  the  party  for 
the  deposit  of  letters  creates  a  presumption  that  it  reached  him, — 
and  his  denial  that  he  received  it  raises  a  conflict  of  evidence. 
Dana  v.  Kernble,  ^9  Pick.  112;  Bluck  v.  Thome,  4  Campb.  192; 
Howard  v.  Daly,  61  K  Y.  362,  19  Am.  Eep.  285. 

When  it  is  necessary  to  prove  a  demand  by  the  introduction  of 


84  LAW    OF    EVIDENCE    IN    CRIMINAL    CASES. 

a  letter  containing  other  matter,  only  that  part  of  the  letter  which 
contains  the  demand  can  he  put  in  evidence,  and  if  the  demand 
is  admitted  the  letter  is  properly  excluded.  Railway  Pass. 
Assur.  Co.  v.  Warner,  1  Thomp.  &  C.  addenda,  21. 

Where  a  letter  is  offered  for  the  purpose  of  proving  a  notice 
contained  in  it,  a  general  ohjection  is  not  sufficient,  but  the  inad- 
missible part  must  be  objected  to.     Stokes  v.  Johnson,  57  N.  Y.  673. 

§  52.  Unanswered  Letters. — The  supreme  court  of  Illinois 
held  in  a  very  celebrated  case  decided  in  1887,  that  an  unanswered 
letter  is  admissible  in  evidence  against  the  person  who  received  it 
and  to  whom  it  was  addressed,  if  it  appears  to  have  been  invited 
by  him,  and  to  have  been  written  in  response  to  some  previous 
communication  by  him.  Spies  v.  People,  122  111.  1,  subse- 
quently considered  in  the  Supreme  Court  of  the  United  States, 
Spies  v.  Illinois,  123  U.  S.  131,  31  L.  ed.  80. 

§  53.  Failure  to  Answer  as  Admission. — An  omission  of  one 
of  the  parties  to  a  transaction,  to  answer  a  letter  written  to 
him  after  the  transaction,  by  the  other  party  thereto,  giving 
the  latter's  version  thereof,  may  not  be  taken  as  an  admission  to 
the  truth  of  the  statements  in  the  letter;  they  are  mere  declara- 
tions of  the  writer  in  his  own  behalf,  which  do  not  demand  an 
answer,  and  are  not  admissible  against  the  party  to  whom  the  let- 
ter is  sent.  The  mere  ex  parte  statements  of  a  party's  case  can- 
not be  received  as  evidence  simply  on  the  ground  that  it  remains 
unanswered.  Learned  v.  Tillotson,  97  X.  Y.  1.  Reasons  may 
exist  why  he  may  choose  and  has  a  right  to  remain  silent  and 
to  vindicate  himself  at  some  future  period  and  on  some  more  op- 
opportune  occasion.     Talcott  v.  Harris,  93  N".  Y.  507. 

But  when  part  of  an  act,  declaration,  conversation  or  letter  or 
other  writing  has  been  given  or  read  in  evidence  by  one  party, 
so  much  of  the  remainder  thereof  as  tends  to  explain  or  qualify 
what  has  been  received  may  be  given  or  read  in  evidence  by  the 
other.  ^Vlien  a  letter  has  been  read  in  evidence,  so  much  of  the 
answer  as  tends  to  explain,  qualify  or  deny  material  parts  of 
the  letter  may  be  read  in  evidence;  and  when  an  act,  declaration, 
conversation  or  writing  has  been  given  or  read  in  evidence,  any 
other  act,  declaration,  conversation  or  writing,  which  is  necessary 
to  make  it  understood,  may  also  be  given  or  read  in  evidence. 
See  Roe  v.  Bay,  7  Car.  &  P.  09S ;  GashUl  v.  Skene,  11  Q.  B. 
064. 


LETTERS.  85 

§  54.  Extract  from  a  Lost  Letter. — The  Xew  York  courts 
hold  that  an  extract  from  a  lost  letter  is  not  evidence,  unless  the 
witness  can  testify  as  to  the  contents  of  the  whole  document. 
Walbridge  v.  Kilpatrick,  9  Hun,  135. 

Where  the  person  to  whom  the  letter  is  written  testifies  that 
he  does  not  know  where  it  is,  but  believes  it  has  been  destroyed, 
its  contents  are  admissible  in  evidence.  Green  v.  Disbrow,  7 
Lans.  381.  And  it  further  appears  from  the  decisions  that  mere 
possession  of  letters  addressed  to  one  does  not  render  them  compe- 
tent against  him.      Willett  v.  People,  27  Hun,  169. 

In  this  connection  it  is  well  to  observe  the  constant  tendency  on 
the  part  of  the  courts  of  last  resort  throughout  this  country  to 
admit  evidence  of  any  facts  which  tend  to  elicit  the  truth.  Con- 
necticut Mut.  L.  Ins.  Co.  v.  ZatArop,  111  U.  S.  612,  28  L.  ed. 
536. 

§  55.  Decoy  Letters. — A  decoy  letter  sent  by  one  engaged  in 
larceny  to  the  porter  of  a  warehouse  for  the  purpose  of  alluring 
the  latter  from  his  place,  is  admissible  against  one  who  is  shown 
to  be  connected  with  such  larceny.  McCai%ney  v.  People,  83  N. 
Y.  408,  3S  Am.  Kep.  456. 

§  56.  Miscellaneous  Authorities.— Letters  written  by  the 
president  of  a  bank  concerning  business  of  the  bank  are  admissi- 
ble in  evidence  against  the  bank,  though  written  in  his  individual 
capacity  and  though  at  the  time  they  are  offered  in  evidence  his 
interests  are  adverse  to  those  of  the  bank.  Panhandle  Nat. 
Bank  v.  Emery,  78  Tex.  498. 

On  the  issue  as  to  actual  membership  of  a  firm,  letters  written 
by  the  party  sought  to  be  charged  as  a  member,  pertaining  to  the 
partnership  business,  are  admissible  in  evidence,  although  they 
were  written  after  the  transaction  as  to  which  he  is  sought  to  be 
charged.  Da/uegvport  Woolen  Mills  Co.  v.  JVeinstedt,  81  Iowa, 
226. 

Letters  from  the  mother  of  an  illegitimate  child  to  its  nurse 
may  be  admitted  in  evidence  for  the  purpose  of  showing  her 
assent  to  the  disposition  that  is  being  made  of  the  child,  and  the 
manner  in  which  it  is  being  provided  for,  but  are  incompetent 
for  the  purpose  of  proving  paternity.  Re  Jessaj/s  Estate,  6  L. 
E.  A.  594,  SI  Cal.  408. 

The  genuineness  of  a  private  letter  is  not  sufficiently  proved  by 
the  testimony  of  the  receiver  that  he  received  it  by  mail,  and  that 


86  LAW    OF   EVIDENCE   IN    CRIMINAL   CASES. 

it  is  the  signature  of  a  certain  person,  of  whose  signature  he  has 
no  knowledge.  Sweeney  v.  Ten  Mile  Oil  da  G.  Co.  130  Pa.  193. 
And  the  mere  receipt  of  letters  purporting  to  be  from  a  person 
never  seen,  and  with  whom  no  subsequent  relations  existed,  which 
were  based  on  them  as  genuine,  does  not  qualify  the  recipient  to 
prove  the  handwriting  of  the  signer.  PinTiham  v.  CocJcell,  77 
Mich.  265. 

The  exclusion  of  a  letter  written  by  a  third  person  to  an  agent, 
introduced  in  evidence  against  the  principal,  is  not  error  where 
there  is  no  evidence  that  the  principal  authorized  the  letter  to 
be  written.     Hargrove  v.  John,  120  Ind.  285. 

A  copy  of  a  letter  cannot  be  received  in  evidence  over  the 
objection  of  the  first  party,  unless  it  is  shown  that  the  original  is 
lost  or  destroyed.      Watson  v.  Roode,  30  Neb.  261. 

Secondary  evidence  of  the  contents  of  a  lost  letter  is  incompe- 
tent unless  the  witness  is  shown  to  be  acquainted  with  the  hand- 
writing of  the  alleged  writer  of  the  letter.  Bone  v.  State,  86  Ga. 
108. 

Parol  evidence  is  admissible  to  prove  the  subject-matter  of  a 
letter  which  cannot  be  produced  on  the  trial.  Hagan  v.  Merch- 
ants &  B.  Ins.  Co.  81  Iowa,  321. 

A  letter  written  by  a  third  person  is  inadmissible  against  a  party 
who  is  not  shown  to  be  bound  by  its  contents.  Zeigler  v.  Henry, 
77  Mich.  480. 

In  an  action  for  false  imprisonment  and  malicious  prosecution, 
a  letter  of  the  prosecuting  attorney  authorizing  the  commence- 
ment of  the  proceedings,  tending  to  show  motive  and  probable 
cause  that  an  offense  has  been  committed,  and  that  the  usual 
course  was  taken  in  such  cases,  is  admissible.  Thurston  v.  Wright, 
77  Mich.  96. 

A  party  cannot  introduce  in  evidence  in  his  own  behalf  letters 
purporting  to  have  been  written  by  him,  to  show  that  a  contract 
is  as  he  claims  it  to  be,  where  there  is  nothing  to  show  that  the 
one  to  whom  they  were  written  ever  received  or  acted  upon  them. 
Griffith  v.  Lake  (Tex.)  Oct.  28,  1889. 

Where  letters  and  postal  cards  have  been  put  in  evidence  for 
the  purpose  of  showing  a  partnership  between  defendant  and 
another,  he  may,  for  the  purpose  of  showing  that  some  of  them 
related  to  other  matters,  put  in  evidence  other  letters  and  postals 
between  the  same  parties.     Morgan  v.  Farrel,  58  Conn.  413. 


LETTERS.  87 

Upon  an  indictment  for  larceny  in  obtaining  goods  by  means 
of  a  false  representation  or  pretense,  evidence  of  other  similar 
transactions  at  or  about  the  same  time  is  competent  as  bearing 
upon  the  question  of  intent.  Letters  written  by  the  prisoner  to 
other  dealers,  and  their  replies  thereto,  and  the  procuring  of  the 
goods  by  means  thereof,  are  admissible  for  such  purpose,  but  let- 
ters written  long  after  the  transaction  has  taken  place  are  not 
.admissible  for  any  purpose.  People  v.  Luke,  27  JS".  Y.  Week. 
Dig.  51. 


CHAPTER  IX. 

TELEGRAMS. 

§  57.  Rule  as  to  Letters  Applied. 

58.  Original  Message  the  Primary  Evidence. 

59.  Views  of  Different  Courts. 

a.  Of  Illinois  Supreme  Court. 

b.  Of  Alabama  Supreme  Court. 

c.  Of  the  United  States  Circuit  Court. 

60.  Presump>tions  as  to  Telegrams. 

61.  Secondary  Evidence  of  Contents. 

%  57.  Rules  as  to  Letters  Applied. — The  legal  intendments 
that  follow  and  apply  to  evidentiary  facts  connected  with  the  in- 
troduction of  letters  as  media  of  proof,  suggest  the  question 
whether  similar  intendments  are  to  be  indulged  with  reference  to^ 
telegrams.  The  drift  of  authority  gives  the  affirmative  answer. 
Gray,  Telegraphs,  §  136;  Com.  v.  Jeffries,  7  Allen,  548,  83  Am. 
Dec.  712;  Whart.  Ev.  §  76;  State  v.  Hopkins,  50  Vt.  316;  Scott  & 
Jarnagin,  Telegraphs,  §  345.  The  presumption  indulged  in  is  one 
of  fact,  and  so  open  to  rebuttal  and  contradiction,  and  consists 
merely  in  the  natural  inference  which  may  be  drawn  from  the 
experienced  certainty  of  transmission.  The  great  bulk  of  letters 
sent  by  mail  reach  their  destination,  and  equally  so  the  great  bulk 
of  telegrams.  A  failure  in  either  case  is  an  exception,  possible, 
but  rare.  The  letters  are  transported  by  government  officials 
under  oath,  and  upon  a  system  framed  to  secure  regularity  and 
precision;  telegrams  by  private  corporations,  whose  success  and 
prosperity  depend  largely  upon  the  accuracy  and  promptness  of 
the  work,  and  are  faithful  under  the  incentive  of  interest.  These 
companies  perform  a  public  service  and  are  regulated  to  some 
extent  by  the  public  law.  There  is  impressed  upon  the  telegraph 
service  something  of  a  public  character,  and  thrown  around  it  the 
guard  and  the  obligations  of  the  public  law,  and  it  seems  to  us 
reasonable  to  assimilate  the  rules  of  evidence  founded  upon  trans- 
mission by  mail  to  that  of  transmission  by  telegraph.  It  may  be 
that  the  presumption  of  correct  delivery,  agreeing  in  kind  with 
that  raised  upon  delivery  to  the  postoffice,  should  be  deemed 

weaker  in  degree,  but  in  view  of  the  wide  extension  of  telegraphic 

88 


TELEGRAMS.  89 

facilities,  and  of  their  increasing  use  in  business  correspondence, 
and  the  difficulty  of  tracing  a  dispatch  to  its  destination,  it  should 
be  held  that  upon  proof  of  delivery  of  the  message  for  the  pur- 
pose of  transmission,  properly  addressed  to  the  correspondent  at 
his  place  of  residence,  or  where  he  is  shown  to  have  been,  a  pre- 
sumption of  fact  arises  that  the  telegram  reached  its  destination 
sufficient  at  least  to  put  the  other  party  to  his  denial,  and  raise  an 
issue  to  be  determined.  There  is  greater  safety  in  conceding  the 
existence  of  such  a  presumption  of  fact  under  a  system  like  ours 
in  which  the  party  addressed  is  always  at  liberty  to  testify,  and  if 
dead,  his  representatives  are  protected  against  the  evidence  of  hi& 
adversary  as  to  personal  transactions  and  communications.  The 
primary  and  original  evidence  of  that  fact  would  be  the  teleoram 
itself,  and  the  handwriting  of  the  sender,  or  of  an  agent  shown  to 
have  been  duly  authorized;  but  when  it  appears  that  the  teleoram 
has  been  destroyed  by  the  company,  secondary  evidence  of  the 
essential  fact  may  be  given.  Howley  v.  Whipple,  48  1ST.  H.  487*. 
Durkee  v.  Vermont  Cent.  R.  Co.  29  Vt.  127;  Breed  v.  First 
Nat.  Bank,  6  Colo.  235;  Rosenthal  v.  Walker,  111  IT.  S.  185,  28- 
L.  ed.  395. 

§58.  Original  Message  the  Primary  Evidence.— It  is  only 
on  proof  excusing  its  production  that  a  copy  of  it  can  be  received 
in  evidence  or  its  contents  be  shown  aliunde.  The  rule  which  is- 
applicable  to  letters,  applies  to  telegrams  affecting  contracts, 
Wharton,  Ev.  §  76;  Scott  &  Jarnagin,  Telegraphs,  §  340;  Mat- 
teson  v.  Noyes,  25  111.  591;  Durkee  v.  Vermont  Cent.  R.  Co.  29 
Vt.  127. 

It  has  been  held  in  Williams  v.  Brickell,  37  Miss.  6S2,  75  Am. 
Dec.  88,  that  although  secondary  evidence  of  the  contents  of  a 
telegram  is  inadmissible  without  accounting  for  the  absence  of  the 
original,  yet  a  new  trial  will  not  be  granted  on  account  of  the 
irregular  admission  of  such  secondary  evidence  if  it  appears  that 
the  sender  himself  admitted  the  sending  of  the  telegram  and  the 
contents  of  it.  His  omission  to  deny  the  sending  of  the  alleged 
telegrams  should  have  the  same  effect.  Adams  v.  Davidson,  L0 
K  Y.  309;  Oregon  SS.  Co.  v.  Otis,  14  Abb.  K  C.  388,  53  Am. 
Eep.  221. 

Where  a  party  sending  a  message  is  the  responsible  party,  and 
sends  a  message  for  the  purpose  of  giving  directions  to  be  acted 
upon,  the  message  delivered  at  the  end  of  the  line  is  the  original. 


"90  LAW    OF   EVIDENCE    IN    CRIMINAL    CASES. 

Morgan  v.  People,  59  111.  58.  In  Wilson  v.  Minneapolis  &  N. 
W.  R.  Co.  31  Minn.  481,  the  court  says:  "It  is  as  though  the 
.communication  had  been  made  orally  by  a  personal  agent,  in 
which  case  it  would  have  been  enough  to  prove  the  agency  and 
the  message  delivered  by  the  agent." 

A  telegraphic  message  is  not  admissible  in  evidence  as  a  com- 
munication of  a  party  offering  it  without  proof  of  its  authenticity. 
Burt  v.   Winona  c&  St.  P.  B.  Co.  31  Minn.  472. 

On  an  indictment  for  forgery  in  a  case  reported  from  Vermont, 
the  state's  attorney  introduced  evidence  showing  that  the  accused 
had  knowledge  of  a  certain  fact.  This  evidence  was  in  the  form 
of  an  uncertified  copy  of  a  telegram  received  by  a  third  party,  but 
purporting  to  have  been  sent  by  the  accused,  making  inquiries 
about  the  fact  in  question.  The  answer  to  this  message  which 
had  been  received  by  the  accused  was  also  in  evidence.  It  fur- 
ther appears,  that  the  third  party  testified  to  the  accuracy  of  the 
telegram  he  had  sent  to  the  accused,  and  the  state  had  shown  that 
the  original  message  had  been  destroyed.  The  court  admitted 
both  telegrams,  and  the  appellate  tribunal  affirmed  the  ruling. 
State  v.  Hopkins,  50  Vt.  316. 

§  59.    Views  of  Different  Courts. 

a.  Of  Illinois  Supreme  Court. — The  Illinois  supreme  court 
has  given  this  matter  critical  attention  and  in  an  early  case 
reached  a  conclusion  that  embodies  the  most  logical  exposition  of 
the  principle  underlying  both  the  legal  relations  of  the  telegraph 
.company  to  the  general  public,  and  the  rules  of  evidence  this 
familiar  relation  is  held  to  impose. 

It  is  an  elementary  principle  that  resort  may  always  be  had  to 
the  best  evidence  within  the  power  of  the  party,  by  which  the 
fact  is  capable  of  proof.  And  it  is  an  inflexible  rule  that  if  it  is 
in  writing,  the  original  must  be  produced,  unless  it  be  shown  that 
it  is  destroyed,  lost,  or  not  within  the  power  of  the  party  to  pro- 
duce it,  before  secondary  evidence  can  be  received  of  the  con- 
tents, and  before  a  copy  of  a  written  instrument  can  be  admitted, 
a  sufficient  foundation  must  be  laid  by  preliminary  proof  of  de- 
struction or  absence.  Where  no  such  proof  is  made  to  justify  the 
reception  of  a  copy  in  evidence,  it  is  inadmissible. 

We  know  that,  by  the  admirable  system  regulating  the  govern- 
ment of  the  telegraph  companies,  the  original  dispatch  is  pre- 
served, and  may  be  at  all  times  procured  for  proper  purposes. 


TELEGRAMS.  91 

The  paper  filed  at  the  office,  from  which  the  message  is  sent,  is  of 
course  the  original,  and  that  which  is  received  by  the  person  to 
whom  it  was  sent,  purports  to  be  a  copy.  If  the  dispatch  is 
sought  to  be  used  in  evidence,  the  original  must  be  produced,  and 
its  execution  be  proved,  precisely  as  any  other  instrument,  or  its 
absence  accounted  for  in  the  same  mode,  before  the  copy  can  be 
received.     Matteson  v.  Noyes,  25  111.  591. 

b.  Of  the  Alabama  Supreme  Court. — The  supreme  court 
•of  Alabama,  in  a  recent  case,  has  had  this  entire  subject  under 
critical  review.  The  distinguished  Chief  Justice  Brickell,  writing 
for  affirmance  and  voicing  the  unanimous  opinion  of  the  entire 
•court  says : 

"  The  general  principle  is,  that  a  party  is  bound  to  produce  the 
best  evidence  within  his  power,  of  which  a  fact  is  capable;  and 
that  whenever  the  original  of  a  writing  can  be  produced,  second- 
ary evidence  of  its  contents  will  not  be  received,  and  it  is  as 
applicable  to  telegrams  as  to  other  writings.  There  is  some 
difficulty  in  determining  whether  the  message  delivered  to  a 
telegraphic  office,  or  that  which  is  delivered  to  the  person  to 
whom  it  may  be  addressed  at  the  point  of  destination,  is  to  be  re- 
garded as  the  original.  Perhaps  under  some  circumstances  the 
one  or  the  other  may  be  considered  the  original.  It  is  not  now 
necessary  to  enter  on  that  inquiry.  If  the  message  as  it  was 
delivered  to,  and  may  be  preserved  in  the  office  of  the  telegraph 
company  at  Philadelphia,  is  to  be  regarded  as  the  original,  it  was 
without  the  jurisdiction  of  the  court,  as  was  its  custodian.  It  is 
a  settled  rule  of  evidence  in  this  country,  that  if  writings,  neces- 
sary as  evidence  in  a  court  of  one  state,  are  in  the  custody  of 
persons  residing  in  another,  secondary  evidence  of  their  contents 
will  be  received."  American  U.  Teleg.  Co.  v.  Daughtt ry,  89 
Ala.  191;  Shorter  v.  Sheppard,  33  Ala.  CIS.  And  see  Whilden 
v.  Merchants  &  P.  Nat.  Bank,  6-1  Ala.  1,  38  Am.  Rep.  1;  Bur- 
ton v.  Briggs,  87  U.  S.  20  Wall.  131,  22  L.  ed.  302;  Seattle  v. 
Billiard,  55  1ST.  H.  428;  Binney  v.  Russell,  109  Mass.  55. 

In  a  note  appended  to  the  case  of  Whilden  v.  Merchants  &  /'. 
Nat.  Bank,  supra,  we  find  the  following  suggestive  commentary 
upon  the  subject  under  review:  " In  Smith  v.  Saston.  54  Md. 
138,  39  Am.  Rep.  355,  it  was  held  that  a  telegraphic  dispatch  is 
not  admissible  in  evidence  without  proof  of  the  handwriting  of 
the  original  and  of  its  delivery  for  transmission.     This  was  an 


92  LAW    OF    EVIDENCE   IN    CRIMINAL    CASES. 

action  to  enforce  an  agreement  by  telegraph  to  indorse.  The 
court  said  :  '  The  message,  sent  by  Easton,  to  be  transmitted  to 
Chesapeake  city,  was  the  original  (Scott  &  Jarnagin,  Telegraphs,. 
§  357,  and  authorities  there  cited)  and  not  the  message  which 
was  received  over  the  wires  .at  Chesapeake  city.  The  latter  must 
be  considered  as  a  copy,  and  carries  with  it  none  of  the  qualities 
of  primary  evidence.  Ordinarily  the  usual  course  is  to  show  the 
delivery  of  the  original  message  of  the  party  sought  to  be  charged, 
at  the  office  from  which  it  is  to  be  telegraphed,  and  then  show 
that  it  was  transmitted  and  delivered  at  the  place  of  its  destina- 
tion. But  even  where  the  original  is  produced  its  authenticity 
must  be  established,  and  this  either  by  proof  of  the  handwriting, 
or  by  other  proof  establishing  its  genuineness.  The  destruction 
of  all  the  messages  sent  from  the  office,  on  the  day  named,  i& 
sufficient  foundation  for  the  admissibility  of  secondary  evidence. 
But  this  secondary  evidence  can  only  be  admitted  upon  proof 
that  the  copy  offered  is  a  correct  transcript  of  the  message  actually 
authorized  by  the  party  sought  to  be  affected  by  its  contents.' 
This  is  sustained  by  Howley  v.  Whipple,  48  N.  H.  487,  and  United 
States  v.  Babcock,  3  Dill.  576.  Mr.  Abbott  (Trial  Ev.  290) 
assents  to  this  where  the  object  is  to  prove  assent  or  admission,, 
but  says  the  copy  delivered  is  the  primary  evidence  to  prove  notice 
to  the  receiver.  Wheat  v.  Cross,  31  Md.  99,  1  Am.  Rep.  28.  In 
Barons  v.  Brown,  25  Kan.  410,  it  is  held  that  where  the  contro- 
versy is  not  between  the  sender  and  the  person  to  whom  a  tele- 
gram is  addressed,  the  original  message,  if  not  left  or  destroyed, 
must  be  produced." 

c.  Of  the  United  States  Circuit  Court. — In  a  very  important 
case  Judge  Dillon  admitted  telegrams  in  evidence,  addressed  to 
the  defendant  by  name,  care  of  the  Executive  Mansion,  "Washing, 
ton,  D.  C,  on  proof  that  they  were  received  by  the  telegraph 
company  in  "Washington,  and  delivered  to  the  doorkeepers  at  the 
executive  mansion,  it  being  shown  that  the  defendant  had  an 
office  therein  as  the  private  secretary  of  the  President,  and  that 
the  usage  of  the  doorkeepers  was  to  deliver  such  messages  to  the 
persons  to  whom  they  were  addressed,  or  place  them  on  their 
desks.  Under  such  circumstances,  telegrams  were  admitted,. 
without  direct  proof  of  their  actual  delivery  to,  or  actual  receipt 
by  the  defendant. 

The  following  is  from  the  opinion  of  the  court  overruling  the 


TELEGRAMS.  93 

objections  of  the  defendant  to  the  introduction  of  dispatches  pur- 
porting to  be  from  the  defendant,  and  to  and  from  McDonald 
and  Joyce : 

"  We  are  of  the  opinion  that  the  objection  to  the  dispatches 
which  have  been  offered  in  evidence,  based  upon  the  ground  that 
they  are  not  relevant  or  material,  is  not  well  taken.  The  jury  is 
the  constitutional  tribunal  to  determine  controverted  questions  of 
facts,  under  appropriate  advice  from  the  court  to  assist  them  in 
.the  discharge  of  this  duty.  If  the  evidence  offered  tends,  in  any 
degree,  to  establish  the  existence  of  any  material  fact,  it  cannot 
be  rejected  as  irrelevant,  but  must  be  received  and  submitted  to 
the  consideration  of  the  jury. 

"  To  reject  the  dispatches  offered,  on  the  ground  that  they  were 
irrelevant  and  immaterial,  would  be  a  decision  by  the  court  that 
such  dispatches  had  nothing  to  do  with  the  alleged  conspiracy, 
and  would  take  that  question,  which  is  a  question  of  fact,  from 
the  jury,  whose  exclusive  province  it  is  to  decide  questions  of 
fact.  "We  do  not  deem  it  expedient,  or  even  proper,  to  remark 
upon  the  several  dispatches,  or  to  say  anything  in  the  presence  of 
the  jury  calculated  to  disclose  the  views  of  the  court  as  to  the 
force  and  effect  of  the  several  dispatches  offered  in  evidence.  It 
is  not  to  be  inferred  that,  in  admitting  the  dispatches,  the  court 
holds  that  they  do  or  do  not  connect  the  defendant  with  the 
alleged  conspiracy.  That  is  a  question  for  the  jury,  under  advice 
and  direction  from  the  court,  which  should  properly  come  in  the 
•charge  or  summing  up  to  the  jury. 

"As  to  the  objection  that  some  of  the  dispatches  addressed  to 
the  defendant  were  unanswered,  we  are  of  the  opinion  that,  this 
alone  does  not  constitute  a  sufficient  ground  to  exclude  them. 
Such  dispatches  are  to  be  viewed  in  connection  with  all  the  cir- 
cumstances of  the  case,  including  the  nature  of  the  dispatches 
themselves,  as  calling  for  an  answer  or  otherwise,  and  the  situa- 
tion and  relation  of  the  parties,  and  the  effect  to  be  given  to  the 
circumstance,  that  no  answers  were  returned,  is  to  be  determined 
by  the  jury  upon  the  whole  evidence,  under  the  rules  of  the  law 
to  be  given  in  the  charge  to  the  jury,  bearing  upon  the  subject. 

"As  to  the  dispatches  between  McDonald  and  Joyce,  confessed 
conspirators,  such  dispatches  are  admissible  as  statements  or  acts 
of  conspirators  among  themselves,  in  furtherance  of  the  con- 
spiracy;  but  as  to.  the  defendant  (Babcock)  they  go  for  naught, 


94  LAW    OF   EVIDENCE    IN    CRIMINAL   CASES. 

unless  he  is  shown,  by  other  evidence,  to  be  connected  with  the 
conspiracy  charged  in  the  indictment."  United  States  v.  Bab- 
cock,  3  Dill.  5T1. 

§  60.  Presumptions  as  to  Telegrams. — Proof  of  the  sending 
of  a  letter  by  mail  raises  the  presumption  of  its  receipt  by  the 
addressee,  and  for  the  same  reasons  telegrams  are  now  held  to  be 
subject  to  the  same  rules.  Trotter  v.  Maclean,  L.  R.  13  Ch. 
Div.  574;  United  States  v.  Babcock,  3  Dill.  573;  Breed  v.  First 
Nat.  Bank,  6  Colo.  235;  Scott  &  Jarnagin,  Telegraphs,  §§  340, 
341;  Allen,  Teleg.  Cos,,  passim;  Ilowley  v.  Whipple,  48  1ST.  H. 
487;  Dunning  v.  Roberts,  35  Barb.  471;  Trevor  v.  Wood,  36  1ST. 
T.  307;  Durkee  v.  Vermont  Cent  B.  Co.  29  Vt.  127;  Rosenthal 
v.  Walker,  111  U.  S.  185,  2S  L.  ed.  395.  The  notice  to  produce 
is  sufficient  to  authorize  the  admission  of  a  telegram,  although  it 
may  have  been  presumed  that  the  papers  called  for  were  in  the 
possession  of  the  telegraph  company.  Burton  v.  Payne,  2  Car. 
&  P.  520. 

By  the  unqualified  indorsement  of  the  United  States  Supreme 
Court,  the  principles  announced  by  the  state  jurisdictions  have 
received  additional  commendation  as  authoritative  utterance  of 
the  law,  and  in  Rosenthal  v.  Walker,  supra,  Mr.  Justice  "Wood 
announced  the  rule  in  language  that  places  the  sentiments  of  the 
Federal  court  beyond  cavil,  controversy,  or  question.  He  says : 
"  The  rule  is  well  settled  that  if  a  letter  properly  directed  is 
proved  to  have  been  either  put  into  the  postoffice  or  delivered  to 
the  postman,  it  is  presumed  from  the  known  course  of  business  in 
the  postoffice  department,  that  it  reached  its  destination  at  the 
regular  time  and  was  received  by  the  person  to  whom  it  was 
addressed.  Saunderson  v.  Judge,  2  H.  Bl.  509;  Woodcock  v. 
Houldsworth,  16  Mees.  &  W.  124;  Dunlop  v.  Higgins,  1  H.  L. 
('as.  381;  Cotton  v.  Gaylord,  3  "Watts,  321;  Starr  v.  Torrey,  22 
N.  J.  L.  190;  Tanner  v.  Hughes,  53  Pa,  289;  Howard  v.  Daly, 
61  K  Y.  362,  19  Am.  Rep.  285;  Huntley  v.  WhiUier,  105  Mass. 
392,  7  Am.  Rep.  536.  As  was  said  by  Gray,  J.,  in  the  case  last 
cited  :  '  The  presumption  so  arising  is  not  a  conclusive  presump- 
tion of  law,  but  a  mere  inference  of  fact,  founded  on  the  prob- 
ability that  the  officers  of  the  government  will  do  their  duty  and 
the  usual  course  of  business,  and  when  it  is  opposed  by  evidence 
that  the  letters  never  were  received,  must  be  weighed,  with  all 
the  other  circumstances  of  the  case,  by  the  jury,  in  determining 
the  question  whether  the  letters  were  actually  received  or  not.' " 


TELEGRAMS.  95- 

§  61.  Secondary  Evidence  of  Contents. — As  in  cases  of  other 
■writings,  proof  of  the  loss  of  a  telegram  is  a  necessary  foundation 
to  the  admission  of  parol  evidence  of  its  contents.  Wliilden  v. 
Merchants  cfe  P.  Nat.  Bank,  64  Ala.  1,  38  Am.  Kep.  1.  It  has 
been  held  that  the  testimony  of  the  operator  in  charge  of  the 
company's  office  from  which  a  telegram  was  sent,  that  he  sent 
away  all  the  papers  found  there  shortly  after  the  telegram  was 
sent,  and  that  he  has  been  informed  that  they  were  destroyed,  is 
not  competent  to  show  the  destruction  of  the  telegram  for  the 
purpose  of  admitting  parol  evidence  of  its  contents.  A?nerican 
U.  Tel  eg.  Co.  v.  Daughtery,  89  Ala.  191. 

This  subject  is  treated  generally  in  connection  with  the  topic 
of  the  preceding  chapter  in  2  Rice,  Civil  Evidence,  1007-1040, 


CHAPTER  X. 

MEMORANDA  IN  EVIDENCE. 

§  62.  Prerequisites  Necessary  to  the  Introduction  of  Memoranda. 

63.  Time  of  Making  Memoranda. 

64.  Memoranda  of  Party  Since  Deceased. 

65.  Views  of  the  United  States  Supreme  Court. 

66.  Views  of  the  Alabama  Supreme  Court. 

67.  Statement  of  the  English  Rule. 

68.  A  Distinction  Noted. 

69.  Restrictions  of  the  General  Rule. 

70.  Recent  Cases  Examined. 

71.  The  Formula  Deduced. 

§  62.  Prerequisites  Necessary  to  the  Introduction  of  Mem- 
oranda.— It  is  an  indispensable  preliminary  to  the  introduction  of 
memoranda  in  evidence  that  it  should  appear  in  the  case  that  the 
witness  is  unable  without  the  aid  of  the  memoranda  to  speak  from 
memory  as  to  the  facts.  It  is  only  as  auxiliary  to,  and  not  as  a 
substitute  for  the  oral  testimony  of  the  witness  that  the  writing  is 
admissible.  It  is  the  duty  of  the  court  in  all  cases  to  see,  before 
receiving  a  memorandum  in  evidence,  that  it  was  made  at  or 
about  the  time  of  the  transaction  to  which  it  relates,  that  its 
accuracy  is  duly  certified  by  the  oath  of  the  witnesses,  and  that 
there  is  necessity  for  its  introduction  on  account  of  the  inability 
of  the  witness  to  remember  the  facts.  Collins  v.  Rochwood^  64 
How.  Pr.  57. 

A  witness  who  says  that  after  refreshing  his  memory  by  a  writ- 
ton  memorandum,  made  by  himself  at  or  about  the  time  of  the 
occurrence,  he  cannot  recollect  the  fact,  but  that  he  is  confident  that 
he  knew  the  memorandum  to  be  correct  when  it  was  made,  is  not 
required,  to  swear  to  the  facts  in  positive  terms,  but  the  memo- 
randum itself  is  received  in  connection  with  and  as  auxiliary  to 
the  oral  testimony. 

§  63.  Time  of  Making  Memoranda. — It  is  well  settled  that 
memoranda  are  inadmissible  to  refresh  the  memory  of  a  witness, 
unless  reduced  to  writing  at  or  shortly  after  the  time  of  the  trans- 

96 


MEMORANDA   IN   EVIDENCE.  97 

action,  and  while  it  must  have  been  fresh  in  his  memory.  The 
memorandum  must  have  been  "presently  committed  to  writing," 
(Lord  Holt  in  Sandwell  v.  Sandwell,  Comb.  445,  Holt,  295); 
"while  the  occurrences  in  it  were  recent  and  fresh  in  his  recollec- 
tion," (Lord  Ellenborough  in  Burrough  v.  Martin,  2  Campb. 
112) ;  "  written  contemporaneous  with  the  transaction,"  {Chief 
Justice  Tindal  in  Steinkeller  v.  Newton,  9  Car.  &  P.  313);  or 
"contemporaneously  or  nearly  so  with  the  facts  deposed  to," 
Chief  Justice  Wilde,  afterwards  Lord  Chancellor  Truro,  in 
Whitfield  v.  Aland,  2  Car.  &  K.  1015.  See  also  Burton  v. 
Plummer,  2  Ad.  &  L.  341,  4  Nev.  &  M.  315;  Wood  v.  Cooper, 
1  Car.  &  K.  645;  Morrison  v.  Chapin,  97  Mass.  72-77;  Spring 
■Garden  Mut.  Ins.  Co.  v.  Evans,  15  Md.  54,  74  Am.  Dec.  555. 

The  reason  for  limiting  the  time  within  which  the  memorandum 
must  have  been  made  are,  to  say  the  least,  quite  as  strong  when 
the  witness,  after  reading  it  has  no  recollection  of  the  facts  stated 
in  it,  but  testifies  to  the  truth  of  those  facts  only  because  of  his 
confidence  that  he  must  have  known  them  to  be  true  when  he 
signed  the  memorandum.  Halsey  v.  Sinsebaugh,  15  ]ST.  Y.  485; 
March/  v.  Shults,  29  K  Y.  346;  State  v.  Bawls,  2  Nott.  &  McC. 
331;  CNeale  v.  Walton,  1  Rich.  L.  234. 

It  is  an  elementary  rule  that  when  an  entry  has  been  repeated, 
in  the  regular  course  of  business,  one  having  been  copied  from 
another,  at  or  near  the  time  of  the  transaction,  all  the  entries  are 
regarded  as  original. 

§  64.  Memoranda  of  Party  Since  Deceased.— The  authori- 
ties are  unanimous  in  declaring  that  memoranda  made  by  a  per- 
son in  the  regular  course  of  his  employment  are  competent  as 
evidence  after  his  death  and  the  inclination  seems  to  be  to  extend 
this  rule  so  as  to  include  those  parties  who  have  passed  beyond 
the  jurisdiction  of  the  court  or  through  infirmity  or  insanity  are 
unable  to  attend  the  trial.  These  assertions  find  warrant  and 
support  in  the  following  cases:  Union  Bank  v.  Knapp,  3  Pick. 
96,  15  Am.  Dec.  181;  Philadelphia  Bank  v.  Officer,  12  Serg.  & 
R.  49;  Augusta  v.  Windsor,  19  Me.  317;  Cass  v.  Bellows,  31  N. 
H.  501,  64  Am.  Dec.  347;  Whitcher  v.  McLaughlin,  115  Mass. 
167;  Mayson  v.  Beazley,  27  Miss.  106;  Massey  v.  Allen,  L.  II.  13 
Ch.  Div.  558;  Welsh  v.  Barrett,  15  Mass.  380;  Stewartv.  Conm  r, 
9  Ala.  803;  Elliott  v.  Dycke,  78  Ala.  150;  Laird  v.  Campbell,  100 
Pa.  159;  State  v.  Phair,  48  Vt.  366;  Porter  v.  Judson,  1  Gray, 
7 


98  LAW    OF   EVIDENCE    IN    CRIMINAL   CASES. 

175;  Costello  v.  Orowell,  133  Mass.  352;  Walker  v.  Curtis,  116 
Mass.  98;  Callaway  v.  McMillian,  11  Heisk.  557;  Bland  v. 
Warren,  65  N.  C.  372;  Clemens  v.  Patton,  9  Port.  (Ala.)  289; 
Field  v.  Boynton,  33  Ga.  239;  Craft's  App.  42  Conn.  146. 

"While  this  general  statement  of  the  doctrine  is  universally  ac- 
cepted, there  are  some  points  of  difference  in  its  practical  applica- 
tion. These  differences  will  be  found,  upon  careful  examination,  to 
arise,  not  from  any  doubt  as  to  the  general  principle  itself,  but  from 
a  certain  want  of  uniformity  in  the  local  law  of  the  various  states 
in  respect  to  the  nature  of  the  quantum  of  preliminary  proof. 

§  65.  Views  of  the  United  States  Supreme  Court. — The 
high  consideration  which  attaches  to  any  decision  of  the  United 
States  Supreme  Court  naturally  invests  its  utterances  with  great 
interest  and  imposes  a  certain  degree  of  respect  upon  the  most 
assertive  and  unconventional  tribunal.  In  a  very  recent  case  the 
topic  now  under  treatment  received  the  attention  of  that  court, 
and  a  decision  was  reached  that  will  doubtless  go  far  to  quiet  the 
controversy  upon  this  subject.  The  court,  Mr.  Justice  Gray 
writing  the  opinion,  holds  that  a  memorandum  in  writing,  of  a 
transaction  which  occurred  twenty  months  before  its  date,  and 
which  the  person  who  made  the  memorandum  testifies  that  he 
had  no  recollection  of,  but  knows  it  took  place  because  the  mem- 
orandum so  states,  and  because  his  habit  was  never  to  sign  a  state- 
ment unless  it  was  true,  cannot  be  read  in  aid  of  his  testimony. 
Parsons  v.  Wilkinson,  113  U.  S.  656,  28  L.  ed.  1037. 

Memoranda  are  not  competent  evidence  by  reason  of  having 
been  made  in  the  regular  course  of  business,  unless  contempora- 
neous with  the  transaction  to  which  they  relate.  NicJwlls  v. 
Well,  21  U.  S.  8  Wheat.  326-337,  5  L.  ed.  628-630;  JEtna  Ins. 
Co.  v.  Weide,  76  U.  S.  9  Wall.  677,  19  L.  ed.  810;  Republic  Fire 
Ins.  Co.  v.  Weide,  81  U.  S.  14  Wall.  375,  20  L.  ed.  894;  Chaffee 
v.  United  States,  85  U.  S.  18  Wall.  516,  21  L.  ed.  908. 

§  Q6.  Yiews  of  the  Alabama  Supreme  Court. — The  pres- 
ent status  of  this  entire  subject  has  the  benefit  of  a  discriminating 
and  logical  review  from  Mr.  Justice  Stone  of  the  Alabama  su- 
preme court.  As  it  would  be  difficult  to  frame  in  language  a 
more  elucidative  statement,  we  append  the  decision  in  full. 

"The  law  recognizes  the  right  of  a  witness  to  consult  memo- 
randa in  aid  of  his  recollection,  under  two  conditions:  First, 
when  after  examining  a  memorandum  made  by  himself,  or  known 


MEMORANDA  IN  EVIDENCE.  99 

or  recognized  by  him  as  stating  the  facts  truly,  his  memory  is 
thereby  so  refreshed  that  he  can  testify,  as  matter  of  independent 
recollection,  to  facts  pertinent  to  the  issue.  In  cases  of  this  class, 
the  witness  testifies  to  what  he  asserts  are  facts  within  his  own 
knowledge;  and  the  only  distinguishing  difference  between  testi- 
mony thus  given,  and  ordinary  evidence  of  facts,  is  that  the  wit- 
ness by  invoking  the  assistance  of  the  memorandum,  admits  that 
without  such  assistance  his  recollection  of  the  transaction  he 
tifies  to  had  become  more  or  less  obscured.  In  cases  falling 
within  this  class,  the  memorandum  is  not  thereby  made  evidence 
in  the  cause,  and  its  contents  are  not  made  known  to  the  jury, 
unless  opposing  counsel  call  out  same  on  cross-examination.  This 
he  may  do  for  the  purpose  of  testing  its  sufficiency  to  revive  a 
fading  or  faded  recollection,  if  for  no  other  reason. 

"In  the  second  class  are  embraced  cases  in  which  the  witness 
cannot  testify  to  an  existing  knowledge  of  the  fact,  independent 
of  the  memorandum  ;  in  other  words,  cases  in  which  the  memo- 
randum fails  to  refresh  and  revive  the  recollection,  and  thus  con- 
stitute its  present  knowledge.  If  the  evidence  of  knowledge 
proceed  no  further  than  this,  neither  the  memorandum  nor  the 
testimony  of  the  witness  can  go  before  the  jury.  If,  however 
the  witness  go  further,  and  testify  that  at  or  about  the  time  the 
memorandum  was  made,  he  knew  its  contents,  and  knew  them  to 
be  true,  this  legalizes  and  lets  in  both  the  testimony  of  the  wit- 
ness and  the  memorandum.  The  two  are  the  equivalent  of  a 
present  positive  statement  of  the  witness  affirming  the  truth  of 
the  contents  of  the  memorandum."  AcJden  v.  Hickman,  60  Ala. 
568. 

In  order  to  refresh  the  recollection  of  the  witness  it  is  not  im- 
portant that  the  paper,  book  or  memorandum  should  have  been 
written  or  printed  by  himself,  or  that  it  should  be  an  original 
writing.  It  is  sufficient  that  he  saw  it  while  the  facts  stated 
therein  were  fresh  in  his  memory,  and  he  knows  that  they  are 
correctly  transcribed  or  printed.  Upon  inspecting  it,  he  can 
state  the  facts,  if  thereby  called  to  his  recollection.  Chopin  v. 
Lapham,  20  Pick.  467.  See  Coffin  v.  Vincent,  12  Cush.  98; 
Kensington  v.  Inglis,  S  East,  273;  Rex  v.  Dutchess  of  Kingston, 
29  How.  St.  Tr.  619;  Burton  v.  Plumnu  r,  -1  Ad.  6c  El.  311 ;  Huff 
v.  Bennett,  6  K  Y.  337.  In  Home  v.  M'Kenzie,  6  Clark  .V  V. 
728,  a  surveyor  was  called  to  refresh  his  memory  by  an  extract 


100  LAW    OF    EVIDENCE    IN    CRIMINAL    CASES. 

from  his  field  notes,  embodied  in  a  printed  note  made  by  him,  and 
verified  by  him  as  correct. 

§  67.  Statement  of  the  English  Rule. — "A  witness  may, 
while  under  examination,  refresh  his  memory  by  referring  to  any 
writing  made  by  himself  at  the  time  of  the  transaction,  concern- 
ing which  he  is  questioned,  or  so  soon  afterwards  that  the  judge 
considers  it  likely  that  the  transaction  was  then  fresh  in  his  mem- 
ory. 

"The  witness  may  also  refer  to  any  such  writing  made  by  any 
person,  and  read  by  the  witness  within  the  time  aforesaid,  if  when 
he  read  it  he  knew  it  to  be  correct. 

"An  exjjert  may  refresh  his  memory  by  reference  to  profes- 
sional treatises."     Stephen,  Dig.  art.  136. 

§  68.  A  Distinction  Noted. — A  distinction  which  it  is  of  the 
utmost  importance  to  observe  is  this:  In  all  instances  where  the 
witness  has  a  clear  and  accurate  recollection  of  the  fact  it  is  sought 
to  show  by  the  written  memoranda — has  a  vivid  recollection  of  all 
facts  independent  of  the  memoranda — the  latter  must  be  excluded 
from  all  consideration.  It  is  not  admissible  as  a  medium  of  evi- 
dence, and  must  not  be  introduced.  Corning  v.  Ashley,  4  Denio, 
354;  Peck  v.  Von  Keller,  76  K  Y.  604;  Dunn  v.  James,  62 
How.  Pr.  307. 

The  importance  of  emphasizing  this  distinction  is  illustrated  in 
a  recent  case  in  the  general  term  of  the  fourth  department  of  the 
New  York  supreme  court.  The  action  was  for  goods  sold  and 
delivered,  the  answer  alleged  payment;  on  the  trial  the  defendant 
stated:  "I  remember  distinctly  paying  this  money,  I  Avas  per- 
fectly sure  I  had  paid  it  without  looking  at  my  memorandum." 
Just  here  was  developed  the  difficulty  that  led  to  the  reversal  of 
the  case,  and  where  the  subtlety  of  the  distinction  sought  to  be 
emphasized  is  best  illustrated.  The  defendant  swears  to  a  distinct 
recollection  of  paying,  independent  of  the  written  memorandum 
which  he  produced  and  read  from,  under  the  objection  of  coun- 
sel. The  objection  was  to  the  incompetency  of  the  written  mem- 
orandum, it  appearing  that  the  witness  could  distinctly  recall  the 
fact  without  it — that  his  recollection  of  the  transaction  which 
resulted  in  the  payment  of  the  claim  was  vivid  and  abiding,  and 
that  he  was  in  no  wise  dependent  for  the  least  assistance  upon  the 
writing.     Collins  v.  Bockwood,  64  How.  Pr.  57. 

In  Marcly  v.  Shults,  29  1ST.  Y.  346,  the  same  rule  was  approved, 


MEMORANDA    IN    EVIDENCE.  101 

and  it  was  held  that  a  memorandum  was  incompetent  because,  in 
the  language  of  Judge  Mullin,  "it  was  not  intimated  by  the  wit- 
ness that  he  did  not  remember  the  fact  without  reference  to  the 
memorandum."  And  at  page  335  of  the  same  case,  Judge  Denio 
reaffirms  the  same  rule. 

The  absence  of  harmony  in  the  various  state  decisions  as  to  the 
legal  status  of  the  writing  itself  admonishes  us  to  indicate  a 
further  distinction  which  should  constantly  be  borne  in  mind. 
This  distinction  relates  to  the  varying  degrees  of  credence  given 
to  the  original  memorandum,  and  a  copy  of  it.  Those  jurisdic- 
tions which  still  adhere  to  the  exclusionary  principles  of  the  early 
common  law  decisions  are  inclined  to  a  very  discourteous  recep- 
tion of  a  principle  which  has  found  great  favor  in  other  states. 
To  introduce  into  one  cause  a  copy  of  a  paper  the  truth  of  the 
copy  must  be  first  established  and  a  proper  foundation  laid  for  its 
introduction,  {Smith  v.  Carrington,  8  U.  S.  4  Cranch,  65,  2  L.  ed. 
551;  Catlin  v.  Underhill,  4  McLean,  199)  but  after  such  founda- 
tion is  laid,  the  memorandum  itself  may  be  introduced  and  it  is 
abundantly  established  by  authority  that  such  evidence  is  compe- 
tent. Pembroke  v.  Allenstown,  41  1ST.  H.  365;  Guy  v.  Mead,  22 
jST.  Y.  462;  Halsey  v.  Sinsebaugh,  15  K  Y.  4S5;  jEtna  Ins.  Co. 
v.  Weide,  76  U.  S.  9  Wall.  677,  19  L.  ed.  810.  See  also  Moots  v. 
State,  21  Ohio  St.  653. 

§  69.  Restrictions  on  the  General  Rule. — There  is  some  con- 
flict in  the  authorities  regarding  the  rules  as  to  the  admission  of 
memoranda  as  evidence,  and  we  find  an  unfortunate  disposition 
in  some  jurisdictions  among  jurists  of  acknowledged  eminence  to 
uphold  the  principle  engrafted  upon  the  Scottish  law,  and 
approved  by  Lord  Tenterden,  to  exclude  from  consideration  all 
memoranda  not  in  the  handwriting  of  the  witness.  This  refine- 
ment must  be  clearly  apprehended.  The  doctrine  was  asserted 
and  declared  in  the  early  years  of  the  common  law,  and  has  been 
a  pet  theory  with  the  Scottish  jurists,  who  have  continued  to 
assert  it  with  unbroken  force  from  the  earliest  time. 

"The  law  is  a  practical  science  and  repudiates  subtle  refine- 
ments and  speculative  inquiry.  It  will  not  sacrifice  substantial 
rights  to  impracticable  processes,  but  will  reject  them  to  make 
way  for  practical  justice.  Recondite  discussion  of  'efficient 
cause,'  'plurality  of  causes,'  and  cognate  topic  are  for  the  meta- 
physician and  the  speculative  philosopher,  not  for  the  practical 


102  LAW    OF    EVIDENCE    IN    CRIMINAL   CASES. 

lawyer  or  judge.  There  are  doubtless  instances  where  the  reason- 
ing which  supports  the  rule  excluding  the  memoranda  of  a 
stranger  from  evidence  operates  in  a  beneficial  way,  but  those 
instances  merely  illustrate  the  force  of  that  glib  phrase  'hard 
cases  make  bad  law.'  "     Tait,  Ev.  §  133. 

A  legal  maxim  originating  in  the  dark  ages  has  been  the  pro- 
lific source  of  this  contrariety  of  view,  and  is  directly  responsible 
for  the  sluggish  attitude  of  some  courts  upon  this  subject  of  mem- 
oranda. 

Where  memoranda  of  disputed  items  covering  ten  years,  made 
by  a  decedent  on  a  loose  slip  of  paper,  found  in  his  desk  after 
death,  without  proof  that  they  were  original  items,  or  when  made, 
or  that  it  was  his  custom  to  make  charges  in  this  manner,  are  not 
admissible  as  evidence  of  an  indebtedness  to  the  decedent.  Bar- 
ber v.  Bennett,  5S  Yt.  476,  56  Am.  Rep.  565. 

While  the  peculiar  situation  disclosed  by  previous  evidence  had 
given  this  case  an  exceptional  status  in  the  law  of  evidence,  still 
we  can  detect  the  presence  of  a  restrictive  tendency  on  the  part 
of  the  court,  in  the  matter  of  memoranda  as  evidence.  The  court 
says:  "There  was  error  in  admitting  the  exhibit  as  evidence,  and 
the  error  cannot  be  regarded  as  a  harmless  one.  The  jury  might 
and  probably  did  consider  the  account,  as  it  appeared  on  that 
exhibit,  of  the  same  value,  as  evidence,  as  they  would  any  other 
account  that  Elijah  Barber  might  have  kept  against  the  defend- 
ant; and  their  verdict,  under  the  charge  of  the  court,  may  have 
been  predicated  upon  that  evidence."  Lapham  v.  Kelly,  35  Yt. 
195;  Cross  v.  Bartholomew,  42  Yt.  206;  Godding  v.  Orcutt,  44 
Yt.  54;  Barber  v.  Bennett,  58  Yt.  476,  56  Am.  Rep.  565. 

§  70.  Recent  Cases  Examined. — It  would  contravene  the  most 
obvious  principles  of  justice,  were  a  party  allowed  to  produce 
memorandum  evidence  without  submitting  it  to  the  inspection  of 
the  opposite  party.  The  law  guards  with  exceptional  caution 
every  avenue  that  leads  to  forgery  or  imposition.  Merrill  v. 
Ithica  &  0.  B.  Co.  10  Wend.  600,  30  Am.  Dec.  130.  A  correla- 
tive right  follows  as  of  course  to  cross-examine  with  reference  to 
the  memoranda. 

The  practitioner  is  referred  for  further  elucidation  upon  this 
subject  of  inspection  to  a  Yermont  case,  where  the  matter  was  a 
subject  of  a  carefully  prepared  opinion  which  has  been  cited 
repeatedly  with  every  symptom  of  approval.  See  State  v.  Bacon, 
41  Yt.  526,  98  Am.  Dec.  616. 


MEMORANDA   IN    EVIDENCE.  103 

The  court  says:  "An  entry  or  memorandum  made  by  the  wit- 
ness himself,  at  or  near  the  time  of  the  transaction  in  question 
and  before  it  has  in  any  degree  faded  from  his  memory,  which  is 
full  and  complete,  so  as  naturally  to  suggest  and  aid  the  mind  in 
recalling  what  really  transpired,  is  a  strong  ground  of  reliance  and 
belief.  It  would,  therefore,  seem  that  it  is  a  legitimate  subject 
of  inquiry  and  examination  with  reference  to  a  witness  referring 
to  entries  on  the  stand  for  the  purpose  of  refreshing  his  recollec- 
tion, whether  the  memorandum  thus  used  and  referred  to  really 
does  assist  his  memory  or  not.  That  must  depend  in  some  meas- 
ure upon  its  character,  and  that  can  be  ascertained  only  by  inspec- 
tion and  cross-examination  in  respect  to  it,  and  when  and  by 
whom  made,  its  appearance,  genuineness,  fullness  and  faithfulness. 
.  .  .  'It  is  always  usual,'  says  Phillips  (1  Phil.  Ev.  p.  289), 
'and  very  reasonable,  when  a  witness  speaks  from  memoranda, 
that  the  counsel  should  have  an  opportunity  of  looking  at  them 
when  he  is  cross-examining  the  witness;'  and  Starkie  (1  Starkie, 
Ev.  p.  179)  asserts  the  same  doctrine.  He  remarks:  'The  wit- 
ness may  be  cross-examined  as  to  other  parts  of  the  entry.'  If 
the  document  be  produced  the  opposite  counsel  is  entitled  to 
cross-examine  from  it.  See  also  part  1,  Cowen  &  Hill's  notes  (2d 
ed.)  757;  Rex  v.  Ramsden,  2  Car.  &  P.  603.  The  view  as  pre- 
sented by  these  authorities  is  alone  consistent  with  the  party's 
right  to  cross-examine  the  witness  upon  whose  credibility  the 
question  in  issue  somewhat  depends,  and  which,  it  is  said,  consti- 
tutes a  'strong  test,  both  of  the  ability  and  willingness  of  the  wit- 
ness to  declare  the  truth.'  In  no  other  way  can  his  accuracy  and 
recollection  be  ascertained  and  tested,  which  in  all  cases  are  proper 
matters  of  inquiry  with  a  view  to  weighing  his  evidence,  and  the 
range  of  inquiry  is  open  to  this  extent.  And  a  witness  cannot 
deprive  a  party  of  this  right,  or  shield  himself  from  the  obligation 
of  disclosing  the  whole  truth  to  this  end,  or  refuse  the  production 
and  examination  of  a  memorandum  which  is  in  court,  and  upon 
which  he  relies  and  to  which  he  refers  for  the  reason  disclosed  by 
this  case;  certainly  not,  unless  it  appears  to  the  court  that  he  had 
a  reasonable  ground  of  belief  that  he  would  subject  himself  to 
personal  injury  in  consequence  of  producing  and  allowing  an  ex- 
amination of  it." 

Mr.  Justice  Andrews,  in  Peck  v.  Valentine,  94  N".  Y.  569, 
characterizes  this  right  to  inspect  the  document  and  cross-examine 


104  LAW    OF   EVIDENCE   IN   CRIMINAL   CASES. 

the  witness  as  one  of  great  importance,  and  a  substantial  safe- 
guard and  protection  against  fabricated  evidence.  To  the  same 
effect  are  the  following  decisions:  Peck  v.  Lake,  3  Lans.  136; 
Chute  v.  State,  19  Minn.  271;  Duncan  v.  Seeley,  34  Mich.  369; 
Stanwood  v.  McLellan,  43  Me.  275;  TiWdts  v.  Sternberg,  QQ 
Barb.  201;  McKivitt  v.  Cone,  30  Iowa,  455;  Dugcm  v.  Mahoney, 
11  Allen,  573;  Costello  v.  Crowell,  133  Mass.  352;  Adae  v.  Zangs, 
41  Iowa,  536;  Davis  v.  ^e/J,  56  Vt.  426;  Burgess  v.  Bennett, 
20  Week.  Rep.  720. 

When  a  witness  produces  a  memorandum,  and  testifies  that  he 
made  it  in  the  usual  course  of  business,  and  that  he  knew  at  the 
time  its  contents  were  true,  his  testimony  and  the  memorandum 
are  both  admissible  as  evidence;  and  if  the  person  who  made  the 
memorandum  or  entries  in  books  is  dead,  they  are  admissible  as 
evidence  on  proof  of  his  handwriting,  and  of  the  fact  that  they 
were  made  in  the  usual  course  of  business,  at  or  about  the  time  of 
the  transaction  to  which  they  relate.  Hancock  v.  Kelly,  81  Ala. 
368. 

A  witness  may  be  allowed  to  refresh  his  memory  by  referring 
to  memoranda  made  by  himself,  relating  to  numbers,  dates,  sales 
and  deliveries  of  goods,  payments  and  receipts  of  money,  accounts 
and  the  like,  in  respect  to  which  no  memory  could  be  expected  to 
be  sufficiently  retentive  without  depending  upon  memoranda. 
Wernwag  v.  Chicago  &  A.  R.  Co.  20  Mo.  App.  473;  Howards. 
McDonough,  77  K  Y.  592. 

To  render  a  memorandum  admissible  as  evidence,  the  witness 
must  be  able  to  testify  that  he  knew  its  contents  when  it  was ' 
made  and  knew  them  to  be  true;  it  must  have  been  made  at  or 
near  the  time  of  the  occurrence  or  transaction  to  which  it  relates, 
and  the  original  must  be  produced,  or  its  absence  accounted  for. 
But  a  witness  may  refresh  his  memory  by  reference  to  a  memo- 
randum made  at  or  about  the  time  of  the  occurence  to  which  it 
relates,  when  he  knows  it  to  be  correct,  and  after  refreshing  his 
memory,  can  testify  from  independent  recollection;  and  he  may 
use  a  copy  which  he  knows  to  be  correct  without  producing  the 
original;  in  which  case,  the  memorandum  is  not  admissible  as  evi- 
dence unless  called  for  by  the  adverse  party,  nor  can  a  copy  be 
used  if  the  original  is  in  court.  Stoudenmire  v.  Harper,  81  Ala.  242. 

A  witness  will  be  permitted  to  refresh  his  memory  by  an  exam- 
ination of  the  memoranda  reasonably  contemporaneous  with  the 


MEMORANDA   IN    EVIDENCE.  105 

transaction  to  which  they  relate,  regarding  dates,  figures,  results 
of  calculation  and  the  like.     Friendly  v.  Lee,  20  Or.  202. 

A  witness  may  be  permitted  to  refresh  his  memory  by  reference 
to  bank  book  entries  and  by  inspection  of  stubs  of  checks,  where 
such  entries  were  made  by  those  having  charge  of  the  books,  in 
the  usual  and  ordinary  course  of  the  business  in  which  the  wit- 
ness was  at  the  time  engaged  and  with  the  conduct  of  which  he 
was  familiar,  and  were  examined  by  him  and  found  correct  and 
were  calculated  only  to  render  accurate  and  definite  that  which 
was  otherwise  in  a  manner  shown  to  be  true  by  his  evidence. 
Third  Nat.  Bank  v.  Owen,  101  Mo.  558. 

A  reporter  for  a  commercial  agency  who  visited  a  certain  per- 
son for  the  purpose  of  getting  a  statement  of  his  financial  condi- 
tion and  who  has  made  a  copy  of  his  statement,  may  in  testifying 
as  to  representations  made  by  such  person  refresh  his  memory 
from  the  copy,  but  where  he  does  not  remember  the  figures  given 
him  by  such  person  but  only  that  he  went  to  him  and  procured  a 
statement  he  cannot  read  the  copy  in  evidence.  Caldwell  v. 
Bowen,  80  Mich.  382. 

An  almanac  may  be  received  in  evidence,  to  refresh  the  mem- 
ory of  the  jury  as  to  the  time  the  moon  rises  or  sets.  Case  v. 
Perew,  46  Hun,  57. 

If  a  witness  swears  that  he  made  an  entry  or  memorandum  in 
accordance  with  the  truth  of  the  matter  as  he  knew  it  to  exist  at 
the  time  of  the  occurrence,  such  entry  or  memorandum  is  admis- 
sible in  evidence  in  confirmation  of  what  the  witness  states  from 
memory.     Owens  v.  State,  07  Md.  307. 

A  witness  cannot  refresh  his  memory  from  an  affidavit  previ- 
ously sworn  to  and  subscribed  by  him  ex  parte,  unless  it  be  shown 
that  the  affidavit  was  written  by  him  or  under  his  direction  at  the 
time  the  facts  occurred  or  immediately  thereafter,  or  at  some  other 
time  when  the  facts  were  fresh  in  his  memory,  and  that  he  knew 
the  same  were  correctly  stated  in  his  affidavit.  Morris  v.  Lach- 
man,  68  Cal.  109. 

A  witness  may  be  permitted  to  refresh  his  memory  from  a 
writing  or  memorandum  made  by  himself  shortly  after  the  occur- 
rence of  the  fact  to  which  it  relates;  but  it  is  only  when  the  mem- 
ory needs  assistance  that  resort  may  be  had  to  these  aids,  and  if 
the  witness  has  an  independent  recollection  of  the  fuels  inquired 
ill »nut,  there  is  no  necessity  nor  propriety  in  his  inspecting  any 
writing  or  memorandum.     Stale  v.  Baldwin,  36  Kan.  '). 


106  LAW    OF    EVIDENCE    IN    C1UMINAL    CASES. 

The  copy  of  a  writing,  as  well  as  the  original  may  be  referred 
to  by  the  witness,  if  his  memory,  refreshed  thereby,  enables  him 
to  testify  of  his  own  recollection  of  the  original  facts,  independ- 
ent of  his  confidence  in  the  accuracy  of  the  copy.  But  he  is  not 
in  such  case  to  read  from  the  copy.  Bonnet  v.  Glattfeldt,  120 
111.  L66. 

A  witness  in  fixing  the  date  of  a  transaction  may  refer  to  a  book 
or  diary  and  the  entries  therein,  but  the  book  or  diary  may  not  be 
produced  for  the  inspection  of  the  jury.  First  Nat.  Bank  of 
Dubois  v.  First  Nat.  Bank  of  Williamsport,  114  Pa.  1. 

The  supreme  judicial  court  of  Massachusetts  in  a  well  con- 
sidered  case,  held  that  a  newspaper  reporter  who  had  made 
specific  memoranda,  of  certain  alleged  facts,  and  had  frequently 
woven  the  <lata  so  obtained  in  a  newspaper  article,  which  had 
been  printed,  might  examine  the  printed  report,  for  the  purpose 
of  assisting  his  recollection.  It  was  not  contended  that  the  written 
or  printed  report  could  be  put  in  evidence.  Com.  v.  Ford,  130 
Mass.  64,  39  Am.  Rep.  430. 

The  Georgia  supreme  court  seems  to  have  adopted  a  most 
liberal  view  of  the  subject,  and  admits  a  memorandum  in  evi- 
dence, on  the  ground  that  it  is  a  part  of  the  res  gestae*,  and  is 
further  competent  as  corroborating  the  memory  of  the  witness. 
The  memorandum  is  regarded  as  a  memorial  made  at  the  time  of 
what  transpired  in  a  form  more  durable  and  less  liable  to  mistake 
than  mere  human  memory.  JReviere  v.  Powell,  61  Ga.  30,  31 
Am.  Rep.  94.  This  decision  exhausts  the  logic  of  the  case,  and 
it  is  to  be  regretted  that  it  is  not  of  wider  acceptation. 

The  rule  is  no  doubt  well  settled  that  a  witness  for  the  purpose 
of  refreshing  his  memory  may  use  any  memorandum  made  at  the 
time  of  a  transaction  in  regard  to  which  he  is  called  upon  to  tes- 
tify, whether  made  by  himself  or  another,  and  when  his  memory 
has  been  refreshed,  he  must  testify  to  facts  of  his  own  knowledge, 
the  memorandum  itself  not  being  evidence.  Bigelow  v.  Hall,  91 
X.  V.  145. 

There  seems  to  be  two  classes  of  cases  on  this  subject.  "Where 
the  witness,  by  referring  to  the  memorandum,  has  his  memory 
quickened  and  refreshed  thereby,  so  that  he  is  enabled  to  swear 
to  an  actual  recollection;  and  where  the  witness,  after  referring 
to  the  memorandum,  undertakes  to  swear  to  the  fact,  yet,  not  be- 
cause he  remembers  it,  but  because  of  his  confidence  in  the  cor- 


MEMORANDA    IN    EVIDENCE.  107 

rectness  of  the  memorandum.  In  both  cases  the  oath  of  the 
witness  is  the  primary,  substantive  evidence  relied  upon.  In  the 
former,  the  oath  being  grounded  upon  actual  recollection,  and  in 
the  latter  on  the  faith  imposed  in  the  verity  of  the  memorandum, 
in  which  case,  in  order  to  judge  of  the  credibility  of  the  oath  and 
the  reliance  to  be  placed  upon  the  testimony  of  the  witness,  the 
memorandum  must  be  original  and  contemporary,  and  produced 
in  court.     Davis  v.  Field,  56  Vt.  426. 

A  witness  having  no  recollection  of  the  details  of  a  fact  claimed 
to  have  occurred  in  the  course  of  the  routine  of  his  official  busi- 
ness, may  testify  to  the  uniform  routine,  and  that  the  details  of 
this  transaction  must  have  been  in  accordance  with  that  routine  or 
habit.  Abbott,  Trial  Brief,  §  394,  citing  Morrow  v.  Ostrander, 
13  Hun,  219;  People  v.  Oyer  &  Terminer,  S3  N.  Y.  136,  aff'g 
People  v.  Genet,  19  Hun,  91. 

A  witness  may  be  permitted  to  refresh  his  memory  from  a 
writing  or  memorandum  made  by  himself  shortly  after  the  occur- 
rence of  the  fact  to  which  it  relates,  but  it  is  only  when  the 
memory  needs  assistance  that  resort  may  be  had  to  these  aids,  and 
if  the  witness  has  any  independent  recollection  of  the  facts 
inquired  about,  there  is  no  necessity  nor  propriety  in  his  inspect- 
ing any  writing  or  memorandum.     State  v.  Baldwin,  36  Kan.  3. 

Of  similar  tenor  are  the  New  York  cases  which  uniformly  hold 
that  a  memorandum  may  be  read  in  evidence,  if  made  at  the  time 
and  by  the  witness  who  made  them.  Ilalsey  v.  Sinsebaugh,  15 
jST.  Y.  487.  It  is  competent  to  read  an  entry  made  by  a  witness, 
or  a  witness  may  use  one  made  by  another,  if  he  can  testify  then 
from  recollection  to  the  fact  to  which  the  entry  relates.  He  can- 
not refer  to  an  entry  not  original,  and  to  one  not  made  at  or  near 
the  time.  March/  v.  SJmlts,  29  N".  Y.  346;  Guy  v.  Mead,  22  JS". 
Y.  462;  Russell  v.  Hudson  Elver  E.  Co.  17  K  Y.  134;  Udell  v. 
Montross,  GS  N.  Y.  499.  The  fact  that  the  memorandum  was 
made  by  the  witness  should  be  proven  with  a  degree  of  certainty 
which  leaves  no  room  for  doubt.  Gilchrist  v.  Brooklyn  Grocers 
Mfg.  Asso.  59  N.  Y.  499. 

§  71.  The  Formula  Deduced. — The  formula  deducible  from 
the  authorities  is  this:  "It  is  competent  to  read  an  entry  made 
by  a  witness,  of  any  fact  material  to  the  issue,  if  made  ;it  or  near 
the  time  when  the  fact  occurred,  and  lie  can  swear  that  it  was 
made  correctly  {Gay  v.  Mead,  supra);  or  may  use  an  entry  made 


10S  LAW    OF   EVIDENCE    IN   CKIMINAL   CASES. 

by  himself  or  by  any  other  person,  or  a  copy  of  an  entry,  if  on 
reading  it  he  can  testify  that  he  then  recollects  the  fact  to  which 
the  entry  relates."     March/  v.  Shults,  supra. 

A  witness  may  be  allowed  to  refresh  his  memory  respecting  an 
issuable  fact  by  any  writing  or  other  material  thing  offered  in 
court  fur  his  inspection,  if  after  such  inspection  the  witness  can 
testify  to  the  fact. 

A  witness  may  be  allowed  to  refresh  his  memory  by  referring- 
to  a  writing  made  by  himself  or  examined  by  him  when  the  facts 
were  fresh  in  his  mind  and  he  knew  the  writing  to  be  correct, 
although  he  has  no  independent  recollection  of  the  facts  sought 
to  l»e  elicited  aside  from  the  writing.  If  the  witness  has  no  recol- 
lection aside  from  the  writing,  the  original  writing,  if  made  by 
the  witness,  may  be  received  in  evidence.  In  either  case  the 
writing  must  be  produced  and  may  be  examined  by  the  adverse- 
party,  who  may,  if  he  chooses,  cross-examine  the  witness  upon  it 
and  may  read  it  to  the  court  and  jury. 

Generally  on  this  topic  it  may  be  found  useful  to  refer  to  the 
following  authorities  as  sustaining  the  rule  established  in  the  fore- 
going text.  Lightner  v.Wike,  4  Serg.  &  E,.  203;  Calvert  v. 
Fitzgerald,  Litt.  Sel.  Cas.  388;  Lawrence  v.  Barker,  5  Wend.. 
305;  Redden  v.  Spruance,  4  Harr.  (Del.)  267;  Field  v.  Thomp- 
son, 119  Mass.  151;  Russell  v.  Hudson  River  R.  Co.  17  N.  Y. 
140;  Guy  v.  Mead,  22  K  Y.  465;  Merrill  v.  Ithaca  &  0.  R.  Co, 
1<;  Wend.  586,  30  Am.  Dec.  130;  Kelsea  v.  Fletcher,  48  IS.  H. 
283;  Haven  v.  Wendell,  11  N.  H.  112;  Minis  v.  Sturdevant,  36 
Ala.  640;  State  v.  Bawls,  2  Nott.  &  McC.  331-334;  Lilly  v.  Hud- 
son Ri/oer  R.  Co.  17  N.  Y.  131;  Pennsylvania  R.  Co.  v.  Brooks, 
57  Pa.  343;  Dietrich  v.  Baltimore  &  H.  S.  R.  Co.  58  Md.  347- 
355;  Lane  v.  Bryant,  9  Gray,  245,  69  Am.  Dec.  282;  Chicago, 
B.  (&  Q.  R.  Co.  v.  Riddle,  60  111.  535;  Virginia  <&  T.  R.  Co.  v. 
Sayers,  26  Gratt.  351;  Chicago  &  N.  W.  R.  Co.  v.  Fillmore,  57 
111.  266;  Michigan  Cent.  R.  Co.  v.  Coleman,  28  Mich.  446;  Mo- 
bile  d'  M.  /,'.  Co.  v.  Ashcraft,  48  Ala.  30;  Belief ontaine  R.  Co. 
v.  Hunt  /'.  '■'>'■'>  Ind.  354,  5  Am.  Kep.  201;  Adams  v.  Hannibal  <& 
St.  J.  R.  Co.  74  Mo.  556,  and  note,  41  Am.  Eep.  333;  Ifansas 
Pac.  U.  C<>.  v.  Pointer,  9  Kan.  630;  Roherts  v.  Burks,  Litt.  Sel. 
Cas.  Ill;  Hawker  v.  Baltimore  &  O.  R.  Co.  15  W.  Va.  636,  36 
Am.  Rep.  V-_T>. 

See  also  ~i  Rice,  Civil  Evidence,  chap.  20. 


CHAPTER  XI. 
PROOF  OF  HANDWRITING. 

■§  72.  How  and  By  Wliom  Proved. 

73.  Ride  as  to  Proof  by  Comparison  in  Different  States. 

a.  Rule  in  Vermont. 

b.  Rule  in  Massachusetts. 

c.  Rule  in  New  York. 

d.  Rule  in  Alabama,  Ohio  and  South  Carolina. 

74.  Miscellaneous  Authorities  Examined. 

75.  Views  of  Mr.  Wills. 

§  72.  How  and  By  Whom  Proved. — The  law  points  out  two 
modes  of  proving  private  writings,  in  order  to  enable  the  parties 
to  use  them  as  evidence.  First,  when  a  witness  has  seen  letters 
or  documents  purporting  to  be  in  the  handwriting  of  the  party, 
and  having  afterward  personally  communicated  with  him  respect- 
ing them,  or  acted  upon  them  as  his,  the  party  having  known  and 
acquiesced  in  such  acts,  it  is  sufficient  to  enable  the  witness  to 
give  evidence  in  relation  to  the  handwriting  of  the  party  to  the 
instrument  sought  to  be  used  in  evidence.  Woodford  v.  McClen- 
■ahan,  9  111.  89.  The  other  mode  is,  by  a  witness  who  has  seen 
the  party  write,  and  if  the  witness  has  seen  the  party  write  but 
once,  he  is  competent  to  prove  the  handwriting.  1  Greenl.  Ev. 
§  577;  Woodford  v.  McClenahan,  supra.  But  the  handwriting 
cannot  be  proved  by  comparing  the  paper  in  dispute  with  other 
papers  acknowledged  to  be  genuine,  either  by  a  witness,  or  by 
the  court  or  jury.  1  Phil.  Ev.  490;  Jumpertz  v.  People,  21  111. 
375;  Kernin  v.  Hill,  37  111.  209;  Mauri  v.  Heffeman,  13  Johns. 
58;  Titford  v.  Knott,  2  Johns.  Cas.  211;  Haines,  Justices  of 
Peace,  p.  683.  Substantially  the  same  rule  in  statutory  form 
finds  appropriate  expression  in  the  following  language: 

"The  handwriting  of  a  person  may  be  proved  by  any  one  who 
believes  it  to  be  his,  and  who  has  seen  him  write,  or  has  seen 
writings  purporting  to  be  his,  upon  which  he  has  acted  or  been 
charged,  and  who  has  thus  acquired  knowledge  of  his  handwrit- 
ing.    Evidence  respecting  the  handwriting  may  also  be  given  by 

109 


110  LAW    OF   EVIDENCE    IN    CRIMINAL   CASES. 

a  comparison  made  by  the  witness  or  the  jury,  with  writings- 
admitted  or  treated  as  genuine  by  the  party  against  whom  the 
evidence  is  offered,  or  proved  to  be  genuine  to  the  satisfaction  of 
the  judge.  "Where  a  writing  is  more  than  thirty  years  old,  the 
comparisons  may  be  made  with  writings  purporting  to  be  genuine, 
and  generally  respected  and  acted  upon  as  such  by  persons  hav- 
ing an  interest  in  knowing  the  fact."  Neal  v.  Neat,  58  Cal.  287; 
( '</,■/<  /'//'.v  Estate^  56  Cal.  470.  And  see  Cal.  Code  Civ.  Proc. 
§§  1943,  1011. 

As  discriminating  a  textwriter  as  Mr.  Phillips,  referring  to  prov- 
ing handwriting,  by  the  evidence  of  third  persons — as  not  inferior 
to  that  of  the  party  himself,  says:  "Such  evidence  is  not  in  its- 
nature  inferior  or  secondary,  and  though  it  may  generally  be  true 
that  a  writer  is  best  acquainted  with  his  own  handwriting,  and 
therefore  his  evidence  will  generally  be  thought  the  most  satis- 
factory, yet  his  knowledge  is  acquired  by  precisely  the  same 
means,  as  the  knowledge  of  other  persons,  who  have  been  in  the 
habit  of  seeing  him  write,  and  differs  not  so  much  in  kind  as  in 
degree.  The  testimony  of  such  persons,  therefore,  is  not  of  a 
secondary  species,  nor  does  it  give  reason  to  suspect,  as  in  the  case 
where  primary  evidence  is  withheld,  that  the  fact  to  which  they 
speak  is  not  true."-  1  Phil.  Ev.  (6th  ed.)  212;  Koscoe,  Crim.  Ev. 
p.  5. 

§  73.  Rule  as  to  Proof  by  Comparison  in  Different  States. 

a.  Rule  in  Vermont. — In  Vermont  the  signature  of  a  party 
may  be  proved  to  be  genuine  or  false  by  a  comparison  of  it 
with  another  genuine  signature.  Butler  Y.Dixon  (Chittenden 
County,  1832,  not  reported),  cited  in  21  Vt.  261;  Gifford  v. 
Ford,  5  Vt.  532;  Adams  v.  Field,  21  Vt.  256;  State  Y.Ward,  39' 
Vt.  225;  State  v.  Horn,  13  Vt.  20;  State  v.  Hopkins,  50  Vt.  316; 
Sand<  rson  v.  Osgood,  52  Vt.  309.     The  signature  with  which  the 

parison  is  made,  before  it  can  be  used,  should  be  established 
as  a  genuine  one.  As  stated  in  Adams  v.  Field,  supra,  its  gen- 
uineness "  must  either  be  admitted  or  established  by  clear,  direct, 
and  positive  testimony."  Unless  this  is  in  the  first  instance  done,. 
the  testimony  should,  for  obvious  reasons,  be  excluded.  Rowell 
v.  Fuller,  59  Vt.  684. 

b.  Rule  in  Massachusetts. — The  question  came  before  the 
court  in  Massachusetts  in  Com.  v.  Coe,  115  Mass.  501,  where  it 
was  held  that,  before  a  writing  can  be  used  as  a  standard  of  com- 


PROOF   OF   HANDWRITING.  Ill 

parison  of  handwriting,  it  must  be  proved  that  the  specimen 
offered  as  a  standard  is  the  genuine  handwriting  of  the  party 
sought  to  be  charged,  and  that  the  question  of  its  admissibility  as- 
a  standard  is  to  be  determined  by  the  judge  presiding  at  the  trial; 
and,  so  far  as  this  decision  is  of  a  question  of  fact  merely,  it  is 
final,  if  there  is  any  proper  evidence  to  support  it;  and  that 
exceptions  to  its  admission  as  a  standard  will  not  be  sustained 
unless  it  clearly  appears  that  there  was  some  erroneous  application 
of  the  principle  of  law  to  the  facts  of  the  case,  or  that  the  evi- 
dence was  admitted  without  proper  proof  of  the  qualifications 
requisite  for  its  competency.  The  same  question  has  very  recent- 
ly been  before  the  court  in  Vermont,  in  the  case  of  Howell  v. 
Fuller,  59  Yt.  688,  where  the  court  reviewing  the  decisions,  there 
says  that  the  question  has  not  before  been  authoritatively  decided 
in  that  state,  and  lays  down  this  rule,  that  when  a  writing  is  dis- 
puted, and  another  is  offered  in  proof  as  a  standard,  the  court 
should  first  find  as  a  fact  that  the  latter  is  genuine  and  then  sub- 
mit it  to  the  jury  in  comparison  with  that  in  controversy.  The 
doctrine  is  enunciated  in  Com.  v.  Coe,  supra,  which  is  the  same 
as  that  so  recently  settled  in  Vermont,  has  since  been  re-affirmed 
in  Costello  v.  Crowed,  133  Mass.  352,  and  again  in  Costello 
v.  Crowell,  139  Mass.  590.  The  rule  in  England  is  now  the 
same  as  in  Massachusetts  and  Vermont.  For  centuries,  how- 
ever, it  was  otherwise,  and  the  English  courts  denied  the 
admissibility  of  such  testimony  altogether  until  1851,  when  par- 
liament, by  17  &  IS  Victoria,  chap.  125,  passed  what  is  known 
as  "The  Common  Law  Procedure  Act,"  which  affiliates  the  law 
writh  that  prevailing  in  the  last  mentioned  states. 

c.  Rule  ill  New  York. — The  most  appropriate  legislation 
relating  to  this  topic  that  has  engrossed  the  attention  of  bench 
and  bar,  is  contained  in  the  recitals  of  chapter  3(3  of  the  Laws  of 
1880,  as  enacted  by  the  legislature  of  the  state  of  New  York, 
Much  of  the  confusion  and  uncertainty  that  infests  this  topic 
would  disappear  under  the  influence  of  a  congressional  enactment 
of  the  same  scope  and  character. 

This  act  was  evidently  intended  to  enlarge  the  rules  of  evi- 
dence and  extend  the  facilities  for  testing  the  handwriting  of  a 
party,  the  genuineness  of  whose  signature  was  disputed,  beyond 
the  opportunities  afforded  by  the  then  existing  rules. 

The  act  in  question  leaves  the  character,  number  and  sufficiency 


112  LAW    OF    EVIDENCE    IN   CRIMINAL   CASES. 

of  identification  of  the  specimens  offered  in  evidence  for  the  pur- 
poses of  comparison  entirely  to  the  discretion  of  the  court,  and 
thus  attempts  to  obviate  the  objections  formerly  existing  to  this 
species  of  evidence. 

The  language  of  the  act,  however,  which  permits  the  introduc- 
tion of  specimens  of  a  person's  handwriting,  for  the  purpose  of 
comparison,  when  proved  to  the  satisfaction  of  the  court,  author- 
izes only  the  admission  of  such  writings  as  purport  to  be  the 
handwriting  of  the  person,  the  genuineness  of  whose  signature  is 
disputed.  The  disputed  writing  referred  to  in  the  statute  relates 
only  to  the  instrument  which  is  the  subject  of  controversy  in  the 
action,  and  the  specimens  of  handwriting  admissible  thereunder 
as  those  of  the  person  purporting  to  have  executed  the  instrument 
in  controversy.  Any  other  construction  would  place  it  within  the 
power  of  a  contestant  to  introduce  in  evidence  specimens  of  the 
handwriting  of  as  many  persons  as  he  should  see  fit  to  charge 
with  the  act  of  forging  the  signature  in  dispute. 

d.  Rule  in  Alabama,  Ohio  and  South  Carolina. — Persons 
who  are  acquainted  with,  or  have  some  knowledge  of  another's 
handwriting,  whether  acquired  by  having  seen  the  party  write,  or 
other  legal  way,  are  competent  to  testify  and  give  an  opinion  as 
to  the  genuineness  of  the  signature.  Experts  may  go  further,  and 
institute  a  comparison  between  writings  admitted  to  be  genuine 
and  those  disputed,  and  give  an  opinion.  A  witness  need  not  be 
familiar  with  another's  handwriting,  to  render  him  competent;  on 
the  other  hand,  not  every  person  who  has  seen  another  write  is 
competent  to  testify,  or  give  an  opinion  upon  the  genuineness  of 
the  signature.  In  the  course  of  a  busy  life,  one  may  see  many 
persons  write,  in  many  instances  merely  casually,  the  recollection 
of  which  is  entirely  effaced  from  the  memory,  as  much  so  as  if  he 
had  never  seen  the  writing.  In  such  cases,  the  witness  is  not 
competent  to  give  an  opinion,  merely  because  he  may  remember, 
or  it  may  be  shown,  that  he  has  seen  the  person  write.  Not  being 
an  expert,  in  order  to  make  a  witness  competent  to  give  an  opin- 
ion as  to  the  genuineness  of  a  writing,  he  must  be  able  to  say  that 
he  has  some  knowledge  or  acquaintance  with  the  handwriting  of 
the  person,  or  believes  he  has  such  knowledge  or  acquaintance- 
ship, acquired  by  seeing  him  write  many  times,  or  once,  or  in 
some  other  legal  way.  The  extent  of  his  knowledge  or  familiar- 
ity with  the  handwriting  in  question  enters  into  the  weight  of  his 
testimony,  but  does  not  affect  its  competency. 


PKOOF    OF    HANDWRITING.  113 

In  the  ease  of  State  v.  Givens,  5  Ala.  754,  it  was  declared, 
that  "a  witness  required  to  testify  upon  the  subject,  must  possess 
a  previous  knowledge,  acquired  by  having  seen  the  party  write, 
or  in  some  other  legal  manner." 

In  the  case  of  Hopper  v.  Ashley,  15  Ala.  4G5,  the  witness  an- 
swered, "that  he  had  seen  the  plaintiff  write  once,  but  he  did  not 
know  his  handwriting."  The  court  informed  the  witness  "that 
he  was  not  required  to  swear  positively  as  to  the  writing,  but  if, 
from  having  seen  the  plaintiff  write  once  or  oftener,  he  believed 
he  was  acquainted  with  his  handwriting,  or  would  recognize  it, 
then  he  was  competent,  and  bound  to  give  his  opinion."  Here 
the  witness  was  held  incompetent. 

The  case  of  Moon  v.  Orowder,  72  Ala.  88,  does  not  militate 
against  these  authorities.  The  declaration  "that  a  witness  who 
has  seen  the  party  write  may  express  his  opinion,"  referred  to  the 
facts  of  the  case  which  appeared  in  the  record,  though  not  re- 
ported in  the  opinion,  and  which  tended  to  prove  a  previous 
knowledge  of  the  handwriting,  acquired  by  having  seen  the  party 
write.  The  more  recent  case  of  Griffin  v.  State,  90  Ala.  596, 
fully  declared  the  same  rule,  as  to  the  competency  of  a  witness  to 
give  an  opinion  upon  handwriting. 

The  fact  that  the  witnesses  saw  the  defendant  write  is  enough 
to  carry  his  testimony  as  to  the  genuineness  of  the  signature  to 
the  jury,  they  to  give  it  such  weight  as  they  think  it  entitled  to. 
Besides,  the  witness  had  corresponded  with  the  defendant  and  re. 
ceived  letters  from  him.  But  if  the  admission  of  the  evidence 
was  erroneous  it  did  no  harm,  since  the  genuineness  of  the 
same  signature  was  proved  by  Andrew  Froitzheim,  Jr.,  whose 
•competency  was  abundantly  shown.  People  v.  Petmecky,  2  N. 
Y.  Crim.  Kep.  450. 

A  person  may,  by  and  through  a  correspondence  with  another, 
become  so  well  acquainted  with  his  handwriting  as  to  be  compe- 
tent to  testify  as  to  the  genuineness  of  a  writing  claimed  to  be  his- 
Abbott,  Trial  Ev.  393;  Boscoe,  Crim.  Ev.  174,  175;  1  Greenl.  Ev. 
§  577;  Rogers  v.  Bitter,  79  U.  S.  12  Wall.  317,  20  L.  ed.  417. 

A  witness  who  shows  himself  to  be  acquainted  with  another's 
handwriting  may,  before  or  at  the  trial,  refer  to  papers  in  his  pos- 
session which  he  knows  to  be  in  the  handwriting  of  the  other,  to 
refresh  his  memory  before  testifying.  Abbott,  Trial  Ev.  395; 
Bedford  v.  Peggy,  0  Hand.  (Va.)  310;  Smith  v.  Walton,  8  Gill, 
77;  McNair  v.  Com.  26  Pa.  388. 


114  LAW    OF   EVIDENCE    IN    CRIMINAL    CASES. 

It  is  a  well  settled  rule  in  Ohio  that,  where  the  genuineness  of 
handwriting  is  involved,  well  attested  standards  of  the  hand  of 
the  person  whose  writing  is  in  question  may  be  introduced  for  the 
purpose  of  comparison  with  that  which  is  disputed;  and  that  this 
comparison  may  be  made,  not  only  by  persons  who  have  seen  the 
party  write,  or  have  acquired  a  knowledge  of  his  hand  by  corre- 
sponding or  transacting  business  with  him,  but  also  by  persons 
skilled  in  handwriting,  such  as  are  usually  called  experts.  Bragg 
v.  CohceU,  19  Ohio  St.  407;  Paveij  v.  Pavey,  30  Ohio  St.  600;, 
Calkins  v.  State,  14  Ohio  St.  222. 

The  rule  established  in  South  Carolina  is  that  while  comparison 
of  handwriting  is  inadmissible  as  an  original  means  of  ascertain- 
ing the  genuineness  of  a  signature  or  other  writing,  yet  it  may  be- 
admitted  in  aid  of  doubtful  proof.  State  v.  Ezekiel,  33  S.  C. 
115. 

§  74.  Miscellaneous  Authorities  Examined. — A  witness 
whose  knowledge  of  a  party's  handwriting  has  been  obtained  by 
seeing  him  write  for  the  purpose  of  showing  his  true  manner  of 
writing  to  the  witness,  with  a  view  to  his  testifying,  will  not  be 
permitted  to  testify  his  belief  as  to  the  genuineness  of  the  signa- 
ture in  question.  Reese  v.  Reese,  00  Pa.  S9,  35  Am.  Rep.  634,. 
quoting  Lord  Kenyon's  saying  in  Si/ranger  v.  SearU,  1  Esp.  14  : 
"The  defendant  might  write  differently  from  his  common  mode 
of  writing  his  name,  through  design." 

In  Kin//  v.  Donahue,  110  Mass.  155,  14  Am.  Rep.  5S9,  where 
a  general  rule  in  relation  to  standards  of  comparison  by  the  jury 
much  less  strict  than  in  other  jurisdictions,  it  was  held  that  a 
party  was  not  entitled  to  write  her  signature  in  the  presence  of 
the  jury  for  the  purpose  of  its  being  compared  with  a  signature 
purporting  to  be  hers  in  evidence,  the  genuineness  of  which  she 
denied.  It  was  said:  "The  rule  however  seems  to  be  that  a  signa- 
ture made  for  the  occasion,  post  litem  motam,  and  for  use  at  the 
tri;i!,  ought  not  to  be  taken  as  a  standard  of  genuineness,  and  that 
the  jury  should  not  be  troubled  with  the  additional  issue  or  ques- 
tion whether  the  signature  so  offered  is  written  in  a  constrained 
and  forced  manner  or  not." 

The  common  law  rule  in  England  and  several  of  the  states  does 
not  allow  the  proof  of  handwriting  by  comparison  of  hands  as  lib- 
erally as  in  Elaine,  Massachusetts  and  Connecticut,  (2Ioore  v. 
United  Stvtes,  91  U.  S.  273,  23  L.  ed.  347)  yet  it  has  always  been 


PROOF    OF    HANDWRITING.  115 

the  practice  in  these  states  to  introduce  other  writings,  admitted 
or  proved  to  be  genuine,  whether  relative  to  the  issue  or  not,  for 
the  purpose  of  comparison  of  the  handwriting.  The  object  is  to 
enable  the  court  and  jury,  by  an  examination  and  comparison  of 
the  standard  with  the  writing  in  controversy,  to  determine  whether 
the  latter  is  or  is  not  genuine.  ETammond's  Case,  2  Me.  35,  11 
Am.  Dec.  39;  Chandler  v.  LeBarron,  45  Me.  536;  Woodman  v. 
Dana,  52  Me.  13;  Homer  v.  Wallis,  11  Mass.  309,  6  Am.  Dec. 
109;  Moody  v.  Howell,  17  Pick.  490,  28  Am.  Dec.  317;  Blchard- 
son  v.  Newcomb,  21  Pick.  315;  Lyon  v.  Lyman,  9  Conn.  55. 

"For  this  purpose,"  observes  the  court  in  Wond  ni,tii  v.  Dana, 
stipi'n.,  "the  specimens  of  handwriting,  not  otherwise  pertinent  to 
the  issue,  but  admitted  and  proved  to  be  genuine,  may  be  intro- 
duced before  the  court  and  jury,  as  a  standard  for  comparison  by 
which  to  test  the  genuineness  of  the  writing  in  controversy,  for 
this  purpose  such  standard  specimens  may  be  compared  by  experts 
in  the  presence  of  the  jury,  and  such  experts  are  permitted  to 
express  an  opinion  as  to  the  fact  whether  the  controverted  paper 
be  genuine  or  not,  founded  upon  such  comparison."  State  v. 
Thompson,  SO  Me.  191. 

It  is  not  allowable,  upon  an  issue  as  to  handwriting,  to  put  in 
evidence  papers,  otherwise  irrelevant,  merely  for  the  purpose  of 
enabling  the  jury  to  institute  a  comparison  of  the  writing.  The 
statute  of  the  state  of  New  York,  permitting  a  comparison  of 
writings  for  the  purpose  of  determining  handwriting,  has  no  effect 
upon  criminal  proceedings  in  the  courts  of  the  United  States.  In 
those  courts  the  extent  of  the  rule  is  to  permit  the  jury  to  com- 
pare writings  lawfully  in  evidence  for  some  other  purpose.  It 
has  never  been  permitted  to  introduce  waitings  for  the  mere  pur- 
pose of  enabling  the  jury  to  institute  a  comparison  of  writings. 
To  permit  the  practice  here  sought  to  be  established  would  be  to 
permit  the  defendant  to  make  evidence  for  himself.  United 
States  v.  Jones,  10  Fed.  Rep.  109. 

In  Bronner  v.  Loornis,  14  Hun,  341,  the  action  was  on  a 
promissory  note  claimed  by  the  plaintiff  to  have  been  made  by 
the  defendant,  who  interposed  the  defense  that  her  signature 
thereto  was  a  forgery.  The  defendant  was  examined  as  ;i  witness 
in  her  own  behalf,  and  on  her  cross-examination  she,  at  the  re- 
quest of  the  plaintiff,  wrote  her  name  on  a  slip  of  paper  which 
was  received  in  evidence  on   the  plaintiff's   offer  and  over  the 


110  LAW    OF    EVIDENCE    IX    CRIMINAL   CASES. 

defendant's  objection,  and  it  was  held  to  be  competent  evidence. 
Tin  inquiry  was.  whether  the  signature  in  question  was  or  was 
nol  that  of  the  witness  who  had  testified  on  the  direct  examina- 
tion that  it  was  not.  In  Chandler  v.  Be  Barron,  45  Me.  534,  it 
was  held  that  a  writing  made  in  the  presence  of  a  court  and  jury 
by  the  party  whose  signature  is  in  dispute,  may  be  submitted  to 
the  jury  tor  the  purpose  of  comparison. 

In  some  jurisdictions  without  statute,  and  in  !N"ew  York  and 
Iowa  by  recent  statute,  any  writing  proved  to  the  satisfaction  of 
the  court,  or  admitted  to  be  genuine,  may  be  used  as  a  standard 
of  comparison;  the  opinions  of  experts  may  be  taken  on  the  com- 
parison, and  the  standards  may  be  submitted  for  inspection  and 
comparison  by  the  jury.  Abbott,  Trial  Brief,  §  437,  citing  Tyler 
v.  /'<»/</.  36  Conn.  218;  Burdick  v.  Bunt,4:3  Ind.  381;  Macomber 
v.  Scott,  1"  Kan.  335;  Com.  v.  Andrews,  143  Mass.  23;  State  v. 
Thompson,  80  Me.  194;  Morrison  v.  Porter,  35  Minn.  425,  59 
Am.  Rep.  331;  Wilson  v.  Beauchamp,  50  Miss.  24;  Yeomans  v. 
Petty,  40  X.  J.  Eq.  495;  State  v.  Hastings,  53  K  H.  453;  Bell 
v.  Br<  wster,  44  Ohio  St.  690;  Travis  v.  Brown,  43  Pa.  9; 
Smyth  v.  ( 'aswt  11,  67  Tex.  567;  A'  nnedy  v.  JTpshaw,  64  Tex.  411; 
Burnett  v.  Sowden,  5  Utah,  210;  Adams  v.  Field,  21  Yt.  256; 
Powell  v.  Fuller,  59  Vt.  688;  K  Y.  Laws  18S0,  chap.  36;  Iowa 
Code.  §  3655;  Statt  v.  Calkins,  73  Iowa,  128. 

A  writing  known  to  be  in  the  handwriting  of  a  part}'  may  be 
introduced  for  the  purpose  of  comparison.  Georgia  M.  M.L.Ins. 
Co.  v.  Gibson,  52  Ga.  640;  Chance  v.  Indianapolis  cOTF.  G.P.  Co. 
32  Ind.  47^!:  Macomber  v.  Scott,  10  Kan.  330;  Page  v.  Unmans, 
14  Me.  478;  Sweetser  v.  Lowell,  33  Me.  446;  Vinton  v.  Peck,  14 
Mich.  295;  Yates  v.  Yates,  76  N.  C  143;  Murphy  v.  Magerman, 
Wright,  293;  Met  'orkl  v.  7,'/Wv,  5  Binn.  340;  State  Y.IIojjhins, 
50  Vt  316;  7,'//v/  v.  J/ //A/-,  1  McMull.  L.  123. 

.'  T.">.  Views  of  Mr.  Wills. — "Evidence  of  similitude  of  hand- 
writing by  the  comparison  of  controverted  writing  with  the 
admitted  or  proved  writing  of  the  party,  made  by  a  witness  who 
:■  seen  the  party  write,  nor  lias  any  knowledge  of  his 
handwriting,  and  who  arrives  at  the  inference  that  it  is  his  hand- 
writing because  it  is  like  some  other  which  is  so,  is  a  mode  of 
proof  which  has  been  much  lauded  by  writers  on  the  civil  law, 
and  i-  commonly  admitted  in  those  countries  whose  jurisprudence 
is  founded  on  that  system;    the  comparison  being  made  by  pro- 


PKOOF    OF    II  AND  WHITING.  117 

fessional  experts  appointed  by  the  court  or  agreed  upon  by  the 
parties,  under  many  restrictions  for  securing  the  genuineness  of 
the  writings  which  are  to  form  the  standard  of  comparison. 
Comparison  of  handwriting  appears  also  to  be  a  recognized  mode 
of  proof  in  some  of  the  American  states,  whose  judicial  systems  are 
generally  founded  on  our  own.  Such  evidence  is  in  general  inad- 
missible in  this  country,  though  the  leaning  of  text-writers  of 
authority  appears  to  have  been  rather  in  favor  of  the  principle  of 
its  admissibility;  the  only  admitted  exceptions  are  where  the 
writing  acknowledged  to  be  genuine  is  already  in  evidence  in  the 
cause,  or  the  disputed  writing  is  in  ancient  writing.  In  these 
excepted  cases,  the  evidence  is  admitted,  it  is  said,  of  necessity,  in 
the  former  case  because  it  is  not  possible  to  prevent  the  jury  IV'  m 
making  such  comparison,  and  therefore  it  is  best,  as  was  remarked 
by  Lord  Denman,  for  the  court  to  enter  with  the  jury  into  that 
inquiry,  and  do  the  best  it  can  under  ci  renin  stances  which  cannot  be 
helped;  in  the  latter,  because  from  the  lapse  of  time  no  living 
person  can  have  any  knowledge  of  the  handwriting  from  his  own 
observation,  and  because  in  ancient  documents  it  often  becomes  a 
pure  question  of  skill,  the  character  of  the  handwriting  varying 
with  the  age,  and  the  discrimination  of  it  being  materially  assisted 
by  antiquarian  researches."     "Wills,  Circ.  Ev.  pp.  132-131. 

For  further  review  of  this  subject  see  1  Rice,  Civil  Evidence, 
chap.  0. 


CHAPTEE  XII. 

PAROL  EVIDENCE. 

§  76.  Its  Extended  Relations  to  Criminal  Cases  Illustrated. 

77.  Statutory  Instances  of  Its  Relevancy. 

78.  Must  in  all  Instances  be  Direct. 

79.  Competent  in  Cases  of  Lost  Instruments. 

%  76.  Its  Extended  Relations  to  Criminal  Cases  Illustrated. 

— The  extended  treatment  accorded  this  subject,  of  best,  second- 
ary and  parol  evidence,  in  volume  1,  of  Rice  on  Civil  Evidence, 
is  sufficient  warranty  for  the  extreme  brevity  of  the  treatment 
here.  A  reduplication  of  the  views  there  expressed,  is  quite 
impossible  through  considerations  of  space  alone,  and  it  is  doubt- 
ful if  the  author  could  improve  the  exposition  there  given,  within 
the  same  limits. 

As  regards  the  topic  of  parol  evidence,  its  obvious  implications 
with  nearly  every  caption  of  this  volume,  are  sufficiently  suggest- 
ive to  prevent  any  attempt  to  minimize  the  subject  by  circum- 
scribing the  statement  of  its  applications  to  the  few  paragraphs 
that  usually  form  the  text  of  a  chapter.  Certainly,  when  we  con- 
sider that  parol  or  oral  evidence  is  competent  to  prove  any  fact 
whatever  (Stephen,  Dig.  Ev.  §  Gl)  it  would  seem  permissible 
under  the  peculiar  circumstances  of  the  case,  to  treat  the  tupic 
under  the  various  sub-headings  to  which  it  naturally  belongs,  and 
to  which  the  practitioner  would  naturally  refer,  rather  than 
attempt  the  colligation  of  its  myriad  applications,  for  the  purpose 
merely  of  scattering  them  again  throughout  the  text  of  the  entire 
volume. 

As  illustrative  of  our  position,  parol  evidence  naturally  associ- 
ates with  (1)  the  examination  of  witnesses;  (2)  the  impeachment 
of  witnesses;  (3)  proof  of  handwriting;  (4)  relevancy;  (5)  res 
gestce;  (6)  expert  and  opinion  evidence,  and  with  defensive  and 
inculpatory  proof  in  all  of  its  endless  diversities.  Its  competency 
under  nearly  every  branch  of  our  subject  is  avowedly  or  by  impli- 
cation admitted  by  jurists  and  textwriters  indiscriminately  and 
with  the  aid  of  an  exceptional  index  the  practitioner  can  readily 

US 


PAROL    EVIDENCE.  119 

turn  to  the  minutest  detail  of  the  subject  or  to  any  sub-heading 
and  find  the  affinities  of  this  particular  branch  of  the  science, 
■elaborated  and  explained.  This  will  sufficiently  account  for  the 
absence  of  an  extended  chapter  dedicated  to  tlte  needs  of  the 
subject. 

The  treatment  of  parol  evidence  is  synonymous  with  the  treat- 
ment of  criminal  evidence.  "Every  fact  except  (speaking  gen- 
erally) the  contents  of  a  document  must  be  proved  by  oral  evi- 
dence." Indeed  a  modern  writer  has  recently  placed  before  the 
profession  a  work  of  exceptional  merit  and  rare  discrimination, 
that  vindicates  the  averments  of  the  text.  Professor  Browne  has 
given  the  elucidations  of  this  subject  in  one  of  the  most  scholarly 
and  comprehensive  legal  compositions  that  have  solicited  the  fav- 
orable attention  of  the  bench  and  bar  for  many  years.  I  cordially 
recommend  the  attentive  perusal  of  his  work,  as  a  complete  vin- 
dication of  the  views  of  the  present  author. 

§  77.  Statutory  Instances  of  Its  Relevancy. — Eeturning 
from  this  brief  digression  it  may  be  expedient  to  illustrate  the 
extreme  breadth  and  ramification  of  this  subject,  by  a  transcript 
of  section  1870,  of  the  California  Code  of  Civil  Procedure.  While 
it  is  not  claimed  that  this  statutory  regulation  has  any  extra-terri- 
torial effect,  it  is  insisted  that  its  wide  acceptation  as  a  correct 
expose  of  modern  rules  admitting  this  species  of  evidence,  are  but 
one  of  its  many  titles  to  recognition,  while  it  may  be  profitably 
.added  that  it  recently  met  with  the  cordial  indorsement  of  the 
very  able  commission,  appointed  by  the  legislature  of  New  York 
to  draft  and  report  a  code  of  evidence,  with  a  view  to  its  ulti- 
mate enactment  as  statutory  law. 

Any  fragment  or  brochure  in  the  form  of  a  legal  screed,  that 
can  meet  with  the  critical  approval  of  such  eminent  jurists  as 
David  Dudley  Field,  David  L.  Follett  and  William  Rumsey,  is 
liable  to  be  as  nearly  perfect  as  the  present  writer  has  any  expec- 
tation of  making  an  independent  statement  of  his  own.  This  fact 
is  certainly  another  title  to  recognition. 

The  section  in  question  relates  to  facts  which  may  be  proved  in 
criminal  prosecutions  by  parol  evidence  and  are  tabulated  in  the 
following  form: 

1.  The  precise  fact  in  dispute; 

2.  The  act,  declaration,  or  omission  of  a  party,  as  evidence 
against  such  party; 


120  LAW    OF    EVIDENCE    IN    CRIMINAL    CASES. 

3.  An  act  or  declaration  of  another,  in  the  presence  and  within 
the  observation  of  a  party,  and  his  conduct  in  relation  thereto; 

4.  The  act  or  declaration,  verbal  or  written,  of  a  deceased  per- 
son in  respect  to  the  relationship,  birth,  marriage  or  death  of  any 
person  related  by  blood  or  marriage  to  such  deceased  person;  the 
act  or  declaration  of  a  deceased  person  done  or  made  against  his 
interest  in  respect  to  his  real  property;  and  also  in  criminal 
actions,  the  act  or  declaration  of  a  dying  person,  made  under  a 
sense  of  impending  death,  respecting  the  cause  of  his  death; 

5.  After  proof  of  a  partnership  or  agency,  the  act  or  declaration 
of  a  partner  or  agent  of  the  party,  within  the  scope  of  the  part- 
nership or  agency,  and  during  its  existence.  The  same  rule 
applies  to  the  act  or  declaration  of  joint  owner,  joint  debtor,  or 
other  person  jointly  interested  with  the  party; 

6.  After  proof  of  a  conspiracy,  the  act  or  declaration  of  a  con- 
spirator against  his  co-conspirator,  and  relating  to  the  conspiracy; 

7.  Where,  also,  the  declaration,  act,  or  omission  forms  part  of 
a  transaction,  which  is  itself  the  fact  in  dispute,  or  evidence  of 
that  fact,  such  declaration,  act,  or  omission,  is  evidence,  as  part  of 
the  transaction; 

8.  The  testimony  of  a  witness  deceased,  or  out  of  the  jurisdiction, 
or  unable  to  testify,  given  in  a  former  action  between  the  same 
parties,  relating  to  the  same  matter; 

9.  The  opinion  of  a  witness  respecting  the  identity  or  handwrit- 
ing of  a  person,  when  he  has  the  knowledge  of  a  person  or  hand- 
writing; his  opinion  on  a  question  of  science,  art,  or  trade,  when 
he  is  skilled  therein; 

10.  The  opinion  of  a  subscribing  witness  to  a  writing,  the  valid- 
ity of  which  is  in  dispute,  respecting  the  mental  sanity  of  the 
signer;  and  the  opinion  of  an  intimate  acquaintance  respecting  the 
mental  sanity  of  a  person,  the  reason  for  the  opinion  being  given; 

11.  Common  reputation  existing  previous  to  the  controversy, 
respecting  facts  of  public  or  general  interest  more  than  thirty 
year.-  old,  and  in  cases  of  pedigree  and  boundary; 

12.  Osage  to  explain  the  true  character  of  an  act,  contract,  or 
instrument,  where  such  character  is  not  otherwise  plain;  but 
usage  is  never  admissible,  except  as  an  instrument  of  interpreta- 
tion: 

{'■).  Monuments  an.1  inscriptions  in  public  places,  as  evidence 
of  common  reputation;  and  entries  in  family  Bibles,  or  other  fam- 


PAROL    EVIDENCE.  121 

ily  books  or  charts;  engravings  on  rings,  family  portraits,  and  the 
like,  as  evidence  of  pedigree; 

14.  The  contents  of  a  writing,  when  oral  evidence  thereof  is 
admissible; 

15.  Any  other  facts  from  which  the  facts  are  presumed  or 
logically  inferable; 

1<I.  Such  facts  as  serve  to  show  the  credibility  of  a  witness,  as 
explained  in  section  1847. 

§  78.  Must  in  all  Instances  be  Direct. — Oral  evidence  must 
in  all  cases  be  direct. 

If  it  refers  to  a  fact  which  could  be  seen,  it  must  be  the  evi- 
dence of  a  witness  who  says  he  saw  it; 

If  it  refers  to  a  fact  which  could  be  heard,  it  must  be  the  evi- 
dence of  a  witness  who  said  he  heard  it; 

If  it  refers  to  a  fact  which  could  be  perceived  by  any  other 
sense  or  in  any  other  manner  it  must  be  the  evidence  of  a  witness 
who  says  he  perceived  it  by  that  sense  or  in  that  manner; 

If  it  refers  to  an  opinion  or  to  the  grounds  on  which  that  opin- 
ion is  held,  it  must  be  the  evidence  of  the  person  who  holds  that 
opinion  on  those  grounds.     Stephen,  Dig.  §  62. 

§  79.  Competent  in  Cases  of  Lost  Instruments. — If  an  orig- 
inal writing  has  been  lost,  proof  of  the  loss  must  first  be  made 
before  parol  evidence  can  be  given  of  its  contents.  Upon  such 
proof  being  made,  together  with  proof  of  the  execution  of  the 
writing,  its  contents  may  be  proved  by  a  copy,  or  by  a  recital  of 
its  contents  in  some  authentic  document,  or  by  oral  evidence. 
See  Best  and  Secondary  Evidence,  ante,  chap.  5. 

The  extreme  importance  of  this  subject  has  induced  elaborate 
consideration  in  1  Rice,  Civil  Evidence,  chap.  8.  The  treatment 
extends  beyond  80  sub-divisions  of  that  chapter,  and  is  believed 
to  faithfully  reflect  the  juridical  sentiment  of  this  country  upon 
this  topic. 


CHAPTER  XIII. 

RES  QE8TJS. 

§  80.  Statement  and  Illustration  of  the  Principle. 

a.  Difficulty  in  Determining  What  Is. 

b.  Views  of  Mr.  Rapalje. 

c.  The  General  Rule. 

81.  What  Evidence  is  Competent  in  Proof  of. 

a.   The  Rule  in  Roscoe. 

82.  Perplexing  Nature  of  the  Proof  of. 
S3.   Tliree  Leading  Cases  Examined. 

a.  Pennsylvania  Case. 

b.  Michigan  Case. 

c.  A  New  York  Case. 

§80.  Statement  and  Illustration  of  the  Principle. — There 

is  a  principle  in  the  law  of  evidence  which  is  known  as  "m 
>/,  stce;"  that  is,  that  the  declarations  of  the  individual  made  at  the 
moment  of  a  particular  occurrence,  when  the  circumstances  are 
such  that  we  may  assume  that  his  mind  is  controlled  by  the  event, 
may  be  received  in  evidence,  because  they  are  supposed  to  be 
expressions  involuntarily  forced  out  of  him  by  the  particular 
event,  and  thus  have  an  element  of  truthfulness  which  they  might 
otherwise  not  have.  To  make  declarations  on  this  ground  admis- 
sible, they  must  have  not  been  mere  narratives  of  past  occurrences, 
but  must  have  been  made  at  the  time  of  the  act  done  which  they 
are  supposed  to  characterize,  and  have  been  well  calculated  to 
unfold  the  nature  and  quality  of  the  acts  they  were  intended  to 
explain;  and  to  s>»  harmonize  with  them  as  to  constitute  a  single 
transaction. 

The  general  rule  is  that  declarations,  to  become  a  part  of  the 
res  gestw,  must  accompany  the  act  which  they  are  supposed  to 
characterize,  and  must  so  harmonize  as  to  be  obviously  one  trans- 
action. See  Hanover  R.  Co.  v.  Coyle,  55  Pa.  396;  Lund  v. 
Tyngsborough,  9  Cush.  36;   Com.  v.  LTaekett,  2  Allen,  130. 

In  the  case  last  cited  a  witness  testified  that,  at  the  moment  the 
fata!  stabs  were  given,  lie  heard  the  victim  cry  out  "  I  am  stabbed," 

122 


KES   GESTAE.  123 

and  he  at  once  went  to  him  and  reached  him  within  twenty 
seconds  after  that,  and  then  heard  him  say,  "I  am  stabbed;  I  am 
gone;  Dan  Hackett  has  stabbed  me."  This  evidence  was  held 
competent  as  part  of  the  res  gestae.  Bigelow,  Ch.  J.,  speaking  of 
this  evidence,  said :  "  If  it  was  a  narrative  statement,  wholly  un- 
connected with  any  transaction  or  principal  fact,  it  would  be 
clearly  inadmissible.  But  such  was  not  its  character.  It  was 
uttered  immediately  after  the  alleged  homicidal  act,  in  the  hear- 
ing of  a  person  who  was  present  when  the  mortal  stroke  was 
given,  who  heard  the  first  words  uttered  by  the  deceased,  and 
who  went  to  him  after  so  brief  an  interval  of  time  that  the 
declarations  or  exclamations  of  the  deceased  may  fairly  be  deemed 
a  part  of  the  same  sentence  as  that  which  followed  instantly,  after 
the  stab  with  the  knife  had  been  inflicted.  It  was  not,  therefore, 
an  abstract  or  narrative  statement  of  a  past  occurrence,  depending 
for  its  force  and  effeet  solely  on  the  credit  of  the  deceased,  un- 
supported by  any  principal  fact,  and  receiving  no  credit  or 
significance  from  the  accompanying  circumstances.  But  it  was  an 
exclamation  or  statement  contemporary  with  the  same  transaction, 
forming  a  natural  and  material  part  of  it,  and  competent  as  being 
original  evidence  in  the  nature  of  res  gestae."  The  learned  judge 
also  said  that  the  rule  which  renders  res  gestce  competent  has  been 
often  loosely  administered  by  courts  of  justice  so  as  to  admit  evi- 
dence of  a  dangerous  and  doubtful  character;  and  that  the  tend- 
ency of  recent  decisions  has  been  to  restrict  within  the  most 
narrow  limits  this  species  of  testimony;  and  that  that  court  was 
disposed  to  apply  the  rule  strictly,  and  to  exclude  everything 
which  did  nut  clearly  come  within  its  just  and  proper  limitations. 

It  may  therefore  be  laid  down  as  the  established  doctrine  that, 
as  to  all  facts  in  evidence  properly  constituting  part  of  the  res 
gestae,  they  are  to  be  considered  by  the  jury,  in  passing  upon  the 
question  of  guilt  or  innocence,  whether  introduced  by  the  prose- 
cutor or  the  defendant.  Hill  v.  People,  1  Colo.  452;  State  v. 
Porter,  3-1  Iowa,  140;  Roscoe,  Crim.  Ev.  (7th  ed.)  135. 

In"  Maker  v.  People,  10  Mich.  217,  81  Am.  Dec.  7S1,  it  is  held 
that  in  criminal  prosecutions  the  whole  of  the  res  gestae,  should  be 
before  the  jury,  so  as  to  show  the  real  nature,  state  of  mini],  and 
intention  with  which  the  act  was  done;  that  the  object  of  the 
trial  should  bo  to  show  the  real  nature  of  the  whole  transaction, 
whether  its  tendency  bo  to  establish  guilt  or  innocence.    It  is  there 


124  LAW    OF    EVIDENCE   IN    CRIMINAL    CASES." 

suggested  that  any  inference  drawn  from  $  detached  portion  of 
an  entire  transaction  may  be  entirely  false.  In  Wellar  v.  People^ 
30  Mich.  20,  the  court  held  it  to  be  the  duty  of  the  prosecutor  in 
cases  of  homicide  to  call  those  witnesses  who  were  present  at  the 
transaction,  or  who  can  give  direct  evidence  on  any  material 
branch  of  it,  unless,  possibly,  where  too  numerous.  In  Hard  v. 
People,  25  Mich.  406,  attention  was  called  to  a  fact  often  over- 
looked by  courts  as  well  as  prosecuting  officers,  that  "a  public 
prosecutor  is  not  a  plaintiff's  attorney,  but  a  sworn  minister  of 
justice,  as  much  bound  to  protect  the  innocent  as  to  pursue  the 
guilty,  and  he  has  no  right  to  suppress  testimony."  Kent  v. 
People,  8  Colo.  563. 

Evidence  of  exclamations,  groans  and  screams  is  now  permitted 
more  upon  the  ground  that  it  is  a  better  and  clearer  and  more 
vigorous  description  of  the  then  existing  physical  condition  of  the 
part}*  by  an  eye-witness  than  could  be  given  in  any  other  way. 

It  characterizes  and  explains  such  condition.  True  such  condi- 
tion might  be  simulated,  but  this  possibility  is  not  strong  enough 
to  outweigh  the  propriety  of  permitting  such  evidence  as  fair,. 
natural  and  original  and  corroborative  evidence  of  the  plaintiff, 
as  to  his  then  physical  condition.  Its  weight  and  propriety  are 
not  therefore  now  sustained  upon  the  old  idea  of  the  necessity  of 
the  case.  But  evidence  of  simple  declarations  of  a  party  made 
-nine  time  after  the  injury  and  not  to  a  physician  for  the  purpose 
of  being  attended  to  professionally,  and  simply  making  the  state- 
ment that  he  or  she  is  then  suffering  pain,  is  evidence  of  a  totally 
different  nature,  is  easily  stated,  liable  to  gross  exaggeration  and 
of  a  most  dangerous  tendency  while  the  former  necessity  for  its 
admission  has  wholly  ceased. 

As  is  said  by  Judge  Allen  in  Reed  v.  New  York,  Gent.  It.  Co. 
45  X.  i.  575,  the  necessity  for  giving  such  declarations  in  evi- 
dence where  the  party  is  living  and  can  be  sworn  no  longer  exist- 
ing, and  that  being  the  reason  for  its  admission,  the  reason  of  the 
rule  ceasing,  the  rule  itself,  adopted  with  reluctance  and  followed 
cautiously,  should  also  cease.  With  the  rules  as  herein  announced 
there  can  be  no  fear  of  a  dearth  of  evidence  as  to  the  extent  of 
the  injury  and  the  suffering  caused  thereby.  The  party  can  him- 
self be  a  witness  if  living,  and  if  dead,  the  suffering  is  of  no  mo- 
ment, and  the  exclamations  of  pain,  the  groans,  the  signs,  the 
screams  can  still   be  admitted.     Lut  we  are  quite  clear  that  the 


KES    GEST.E.  125 

bald  statement  made  long  after  the  injury  by  the  party  that  he 
suffers  from  pain  ought  not  to  be  admitted  as  in  any  degree  cor- 
roborative  of  his  testimony  as  to  the  extent  of  his  pain.  Roche  v. 
Brooklyn   C.  &  X.  R.  Co.  105  X.  Y.  294,  59   Am.  Rep.  506. 

a.  Difficulty  in  Determining  what  is. — It  is  not  easy 
always  to  determine  when  declarations  may  be  received  as  part  of 
the  res  gestm,  and  the  cases  upon  this  subject  in  this  country  and  in 
England  are  not  always  in  harmony.  The  cases  of  Com.  v.  Mc- 
PiJce,  3  Cush.  181,  1  Am.  Eep.  727,  and  Travelers  Ins.  Co.  of 
Chicago  v.  Mosley,  75  U.  S.  8  Wall.  397,  19  L.  ed.  437,  are  ex- 
treme cases  upon  one  side,  and  would  justify  the  reception  of  the 
declarations  in  the  last  paragraph.     The  case  of  Reg.  v.  Beding- 

field,  14  Cox,  C.  C.  341,  is  an  extreme  case  upon  the  other  side, 
and  goes  much  further  than  would  be  needed  to  justify  the  exclu- 
sion of  these  declarations.  That  case  was  decided  by  Lord  Chief 
Jwstict  Cockburn,  after  consulting  with  Field  and  Manisty,  JJ., 
and  aroused  much  discussion  and  criticism  in  England.  Beding- 
fteld's  Case,  14  Am.  L.  Rev.  817,  15  Am.  L.  Rev.  71.  The  rule 
as  to  res  gestcs  laid  down  in  Com.  v.  McPike,  supra,  has  since 
been  limited,  and  very  properly  applied  in  other  cases. 

b.  Views  of  Mr.  Rapalje. — When  it  becomes  necessary  to 
inquire  into  the  nature  of  a  particular  act,,  or  the  intention  of  the 
person  who  did  it,  proof  of  what  he  said  at  the  time  is  admissible 
for  the  purpose  of  showing  the  true  character  of  the  act;  but 
to  render  such  declaration  competent,  the  act  with  which  it  is 
connected  should  be  pertinent  to  the  issue;  for  when  the  act  is 
per  se  incompetent,  the  union  of  the  two  will  not  render  the  dec- 
laration admissible.  Brumley  v.  State,  21  Tex.  App.  '222.  57  Am. 
Rep.  012;  State  v.  Belcher,  13  S.  C.  459;  State  v.  Horton,  33  La. 
Ann.  289;  Lander  v.  People,  104  111.  248;  Hunter  v.  State,  40  X. 
J.  L.  405;  Mack  v.  State,  48  Wis.  271.  The  true  test  of  the  ad- 
missibility of  such  testimony  is,  that  the  act.  declaration  or  excla- 
mation must  be  so  intimately  interwoven  with  the  principal  fact 
or  event  which  it  characterizes,  as  to  be  regarded  a  part  of  the 
transaction  itself,  and  also  to  clearly  negative  any  premeditation 
or  jjurpose  to  manufacture  testimony.  Land<  r  v.  J'<  opl< .  supra; 
Foster  v.  State,  S  Tex.  App.  24S;  Rapalje,  Crim.  Proc.  243. 

c.  The  (general  Rule. — The  general  rule  as  to  res  gesta  is 
that  all  declarations  made  at  the  same  time  the  main  fact  under 
consideration  takes  place,  and  which  are  so  connected  with  it   as 


126  LAW    OF    EVIDENCE    IN    CRIMINAL    CASES. 

to  illustrate  its  character,  are  admissible  as  original  evidence,, 
being-  what  is  termed  a  part  of  the  res  gestae,  in  other  words,  a 
part  of  the  thing  done.  The  cries  of  the  bystanders  while  the 
thing  is  being  done  are  original,  and  not  hearsay  evidence,  because 
they  arc  part  of  the  res  gestae,  but  a  defendant  may  not  manufact- 
ure evidence  for  himself,  either  before  or  after  or  in  the  moment 
of  The  assault,  and  claim  its  admission  under  this  head,  and  in  no- 
just  sense  can  words  spoken  several  moments  before  or  after  the 
event  be  considered  a  part  of  the  thing  done.  Territory  v.  Yar- 
lerry,  2  New  Mex.  391. 

The  res  gesfae  consists  of  two  parts, — the  accompanying  acts  and 
the  declarations  attending  them.  The  rule  is,  as  we  have  seen, 
that  the  whole  transaction  may  be  given  in  evidence.  But  it  is 
impossible  to  deduce,  from  the  authorities,  an  available  rule  as 
to  what  shall  be  deemed  of  the  transaction,  and  what  shall 
not.  The  subsidiary  act  need  not  transpire  at  the  same  instant 
with  the  main  one,  or  always  even  on  the  same  day;  and,  in  rea- 
son, as  well  as  in  accordance  with  the  current  of  the  authorities, 
the  time  which  divides  the  two  is  not  the  controlling  considera- 
tion, though  it  may  be  taken  into  the  account.  Is  it  presumable 
that,  distinctly  and  palpably,  it  influenced  or  was  influenced  by 
the  main  act,  or  proceeded  from  the  same  motive?  If  so,  it  is 
admissible,  otherwise  not.  Such  is  the  doctrine  in  reason;  and,  it 
is  submitted,  the  current  of  authority  is,  at  least,  not  adverse. 
Bishop,  Crim.  Proc.  §  10S5. 

§81.  What  Evidence  is  Competent  in  Proof  of. — When  a 
declaration,  act  or  omission  forms  part  of  a  transaction  which  is  a. 
fact  in  issue  relevant  to  the  issue,  such  declaration,  actor  omission 
is  relevant  if  it  tends  to  explain  or  to  show  the  purpose  or  char- 
acter of  the  transaction.  This  is  equivalent  to  holding  that  evi- 
dence of  occurrences  at  or  about  the  time  the  crime  is  committed, 
is  admissible  as  part  of  the  res  gestcB.  Com.  v.  liar 'wood,  4  Gray, 
■11.  64  Am.  Dec.  41);  Sehneck&r  v.  People,  88  K  Y.  102;  3  Rus- 
sell, Crimes  (9th  ed.)  288;  Coleman  v.  People,  5S  N.  Y.  555,. 
affirming  1  Hun,  396;  Pontius  v.  People,  21  Hun,  328,  affirmed 
:  X.  Y.  339;  Hope  v.  People,  83  K  Y.  418;  Skipply  v.  Peo- 

.  36  X.  Y.  375;  Walters  v.  People,  0  Park.  Crim.  Bop.  15; 
/<'../■  v.  Ellis,  6  Barn.  &  C.  115;  2  Russell,  Crimes,  287,  288;  2 
by,  Crim.  Law,  192;  Jordan  v.  State,  22  Ga.  545. 

The  rule  of  the  res  gestae  admits  declarations  made  under  the 


RES    GESTAE.  127 

impulse  of  the  occasion,  though  somewhat  separated  in  time  and 
place,  if  so  woven  into  it  by  the  circumstances  as  to  receive  credit 
from  it.  Abbott,  Trial  Brief,  §  628.  So  what  a  by-stander  says 
during  an  occurrence,  and  in  the  presence  of  the  actors,  is  compe- 
tent as  part  of  the  res  gestae.  Baker  v.  Gaicsin,  76  Ind.  317;. 
Wood  v.  State,  92  Ind.  269.  It  must  certainly  be  regarded  that, 
in  criminal  trials,  the  conduct  of  the  accused  at  or  about  the  time 
the  offense  is  alleged  to  have  been  committed,  and  at  or  about  the 
time  of  the  arrest,  may  go  in  evidence  to  the  jury  as  one  means 
of  establishing  the  fact  and  extent  of  the  defendant's  guilt.  This 
species  of  evidence  has  been  so  often  received  that  we  will  not 
undertake  to  cite  the  numerous  authorities.  See  Johnson  v.  State,- 
17  Ala.  624;  Martin  v.  State,  28  Ala.  81. 

a.  The  Rule  in  RoSCOe. — It  is  said  in  Eoscoe's  Criminal. 
Evidence,  p.  115,  that  "not  unfrequentlya  presumption  is  formed 
from  circumstances  which  would  not  have  existed  as  a  ground  of 
crimination  but  for  the  accusation  itself;  such  are  the  conduct,, 
demeanor,  and  expressions  of  a  suspected  person  when  scrutinized 
by  those  who  suspect  him."  While  this  is  an  authority  enjoining 
on  courts  and  jury  the  duty  of  exercising  great  caution  in  receiv- 
ing and  weighing  such  evidence,  it  is  nevertheless  a  direct  author- 
ity for  receiving  evidence  of  the  conduct,  demeanor  and  expres- 
sions of  the  accused.     Lilts  v.  Stats,  30  Ala.  24. 

The  true  rule  is,  that  all  acts  and  facts  upon  which  any  reason- 
able presumption  of  the  truth  or  falsity  of  the  issue  can  be  founded, 
may  be  given  in  evidence;  but  such  acts  or  facts  must  precede 
or  be  part  of  the  res  gestae,  and,  unless  as  confessions  or  given  for 
the  purpose  of  explanation  or  qualification,  the  subsequent  acts 
and  statements  of  the  party  are  never  admissible.  The  acts  and 
declarations  of  the  prisoner  given  in  evidence  in  his  favor  ought 
to  be  connected,  both  in  point  of  subject-matter  and  of  time,  with 
the  acts  or  declarations  proved  against  him.  Roscoe,  Crim.  Ev. 
88;  DiUin  v.  People,  8  Mich.  357. 

What  is  said  and  done  by  persons  during  the  time  they  arc  en- 
gaged in  a  riot  constitutes  the  res  gestae,  and  it  is,  of  course,  com- 
petent to  prove  all  that  is  said  and  done.  If  the  violenl  0] 
disorderly  conduct  of  the  rioters  results  in  injury  to  property,  and 
the  act  causing  the  injury  is  committed  during  the  riot,  the  state 
may  prove  the  act  which  caused  the  injury.  This  evidence  is  not 
admitted  for  the  purpose  of  establishing  another  offense,  but  be- 


L28  LAW    OF    EVIDENCE    IN    CRIMINAL    CASES. 

cause  it  is  a  part  of  the  occurrence  which  constitutes  the  riot  and 
tends  to  show  that  the  conduct  of  the  defendant  was  riotous  and 
violent.     Gallaher  v.  State,  101  Ind.  411. 

§  82.  Perplexing  Nature  of  the  Proof  of. — In  a  recent 
New  Jersey  case,  Chief  Justice  Beasley,  in  referring  to  this  sub- 
ject, says:  "I  think  I  may  safely  say  that  there  are  few  problems 
involved  in  the  law  of  evidence  more  unsolved  than  what  things 
are  to  be  embraced  in  those  occurrences  that  are  designated  in  the 
law  as  the  res  gestae.  The  adjudications  on  the  subject,  more 
especially  those  in  this  country,  are  perplexingly  variant  and  dis- 
cordant. I  can  readily  find  judicial  rulings  by  force  of  which 
this  testimony  would  be  excluded;  but  I  can  as  readily  find  other 
rulings  of  equal  weight,  that  would  sanction  its  admission.  This 
result  has  grown  out  of  the  difficulty  of  applying,  with  anything 
like  precision,  general  rules  to  a  class  of  cases  of  infinite  variety. 
In  the  well  considered  case  of  Lund  v.  Tyngshorough,  9  Cush. 
12,  it  is  said:  '  The  res  gestae  are  different  in  different  cases,  and 
it  is,  perhaps,  not  possible  to  frame  any  definition  which  would 
embrace  all  the  various  cases  which  may  arise  in  practice.  It  is 
for  the  judicial  mind  to  determine  upon  such  principles  and  tests 
as  are  established  by  the  law  of  evidence,  what  facts  and  circum- 
stances in  particular  cases  come  within  the  import  of  the  terms. 
In  some  instances,  the  test  indicated  will  be  found  in  the  rule  that 
such  declarations  are  admissible,  because  they  are  so  connected 
with  an  act,  itself  admissible  as  part  of  the  res  gestae,  as  to  have 
become  incorporated  with  it.  The  declaration  and  the  act  must 
make  up  one  transaction.  The  theory  justifying  this  course  is 
that,  when  such  declarations  are  thus  coupled  with  a  probable  act 
they  receive  confirmation  from  it;  but  if  they  stand  alone,  with- 
out such  support,  they  depend  altogether  for  their  credence  on 
the  veracity  of  the  utterer,  and  thus  conditioned,  they  are  pure 
hearsay,  and  inadmissible.'  Alluding  to  the  rule  that  excludes 
hearsay,  Mr.  Starkie,  1  Stark.  Ev.  p.  65,  says:  'The  principle 
d<  >es  n<  >t  extend  to  the  exclusion  of  any  of  what  may  be  termed  real 
or  natural  facts  and  circumstance  in  any  way  connected  with  the 
transaction,  and  from  which  any  inference  as  to  the  truth  of  the 
disputed  fact  can  reasonably  be  made.'"  Hunter  v.  State,  40  N. 
J.  L.  41*5. 

§  83.  Three  Leading  Cases  Examined, 
a.  A  Pennsylvania  Case. — A  recent  Pennsylvania  case  which 


KES   GESTiE.  129 

came  before  the  supreme  court  on  appeal  will  best  illustrate  the 
present  attitude  of  the  American  judiciary  upon  this  Very  impor- 
tant phase  of  evidentiary  law.  The  extract  which  is  here  repro- 
duced will  disclose  its  relations  with  our  subject  and  sustain  the 
positions  of  the  text.     The  court  says : 

"The  principal  witness  for  the  commonwealth  testified  to  the 
prisoner's  participation  in  the  homicide,  and  the  circumstances 
connected  therewith.  Among  other  things,  she  stated  that  imme- 
diately after  the  murder  was  committed  and  the  money  divided, 
one  of  the  parties  concerned  therein  scraped  some  of  the  blood 
from  the  floor  into  a  piece  of  red  earthen  crock,  emptied  it  at  the 
east  end  of  the  house,  so  that  the  people  would  think  the  Kintz- 
lers  were  killed  outside  and  would  not  look  for  their  remains  in 
the  house,  and  then  threw  the  crock  over  the  top  of  the  appletree 
into  the  adjoining  woods.  It  was  proved  by  several  witnesses 
that  blood  was  found  next  morning  where  Mary  Hartley  said  it 
had  been  emptied,  and,  in  further  corroboration  of  her  testimony, 
the  witness  was  permitted  to  testify,  under  exception,  that  in 
August,  1880,  he,  in  company  with  other  persons,  made  search  in 
the  edge  of  the  woods,  where  Mary  Hartley  said  the  piece  of 
crock  was  thrown,  and  there,  among  the  leaves  and  stones,  found 
several  pieces;  in  the  language  of  the  witness,  'quite  a  number 
among  the  rotten  leaves  and  dirt.  There  are  small  roots  grown 
over  parts  of  the  pieces,  wire  roots.'  He  also  testified  that  he 
tried  some  of  the  pieces,  and  they  fitted  together,  thus  indicating 
that  they  were  parts  of  a  larger  piece,  corresponding  in  kind  with 
that  alleged  to  have  been  thrown  away  on  the  night  of  the  mur- 
der. This  may  appear  to  be  a  trilling  circumstance,  but  in  view 
of  the  fact  that  throughout  the  trial,  the  credibility  of  Mary 
Hartley  was  assailed  as  unworthy  of  belief,  on  the  ground  that, 
according  to  her  own  showing,  she  was  an  accomplice,  it  was  not 
improper  to  corroborate  her  statement  as  to  the  res  gestce.  She 
had  been  corroborated  as  to  other  circumstances,  but  it  was  urged, 
as  a  special  objection  to  the  admission  of  the  testimony  complained 
of,  that  so  long  a  time  had  elapsed  before  the  pieces  of  crock  were 
found.  In  reply  to  this,  the  learned  judge  properly  remarked 
that  he  could  not  say,  'as  matter  of  law,  that  it  was  too  remote  to 
be  received  in  evidence.'  The  fact  that  the  place  where  the 
pieces  of  crock  were  found  was  secluded,  lessened  the  probability 
■of  their  having  been  placed  there  by  any  other  agency  than  that 
9 


130  LAW    OF   EVIDENCE   IN    CRIMINAL    CASES. 

testified  to  by  Mary  Hartley;  and  the  f urther  fact  that  they  were' 
covered  with  leaf  mould,  and  wire  roots  had  grown  over  them, 
indicated  that  they  had  probably  lain  there  from  the  time  the 
murder  was  committed.  In  connection  with  other  facts  and  cir- 
cumstances in  the  case,  we  cannot  say  it  was  improper  to  receive 
and  submit  the  testimony  to  the  jury.  As  corroborative  evidence, 
it  may  have  been  very  slight,  but  still  it  was  not  incompetent." 
Moyer  v.  Com.  98  Pa.  338. 

b.  A  Michigan  Case. — The  prosecution  can  never,  in  a  crim- 
inal case,  properly  claim  a  conviction  upon  evidence  which, 
expressly  or  by  implication,  shows  but  a  part  of  the  res  gestce,  or 
whole  transaction,  if  it  appear  that  the  evidence  of  the  rest  of  the 
transaction  is  attainable.  This  would  be  to  deprive  the  defend- 
ant of  the  benefit  of  the  presumption  of  innocence,  and  to  throw 
upon  him  the  burden  of  proving  his  innocence.  It  is  the  res- 
gestce,  or  whole  transaction,  the  burden  of  proving  which  rests 
upon  the  prosecution,  so  far  at  least  as  the  evidence  is  attainable. 
It  is  that  which  constitutes  the  prosecutor's  case,  and  as  to  which 
the  defendant  has  the  right  of  cross-examination;  it  is  that,  which 
the  jury  are  entitled  to  have  before  them,  and,  "until  this  is 
shown,  it  is  difficult  to  see  how  any  legitimate  inference  of  guilt, 
or  of  the  degree  of  the  offense,  can  be  drawn." 

The  prosecutor  in  a  criminal  case,  is  not  at  liberty,  like  a  plain- 
tiff in  a  civil  case,  to  select  out  a  part  of  an  entire  transaction 
which  makes  against  the  defendant,  and  then,  to  put  the  defend- 
ant to  the  proof  of  the  other  part,  so  long  as  it  appears  at  all 
probable  from  the  evidence,  that  there  may  be  any  other  part  of 
the  transaction  undisclosed,  especially  if  it  appears  to  the  court 
that  the  evidence  of  the  other  portion  is  attainable.  The  only 
legitimate  object  of  the  prosecution  is,  "to  show  the  whole  trans- 
action,  as  it  was,  whether  its  tendency  be  to  establish  guilt  or 
innocence."  The  prosecuting  officer  represents  the  public  inter- 
est, which  can  never  be  promoted  by  the  conviction  of  the  inno- 
cent. His  object  like  that  of  the  court,  should  be  simply  justice; 
and  he  has  no  right  to  sacrifice  this  to  any  pride  of  professional 
Buccess.  And  however  strong  may  be  his  belief  of  the  prisoner's 
guilt,  he  must  remember  that,  though  unfair  means  may  happen 
to  result  in  doing  justice  to  the  prisoner  in  the  particular  case, 
vet,  justice  so  attained  is  unjust  and  dangerous  to  the  whole  com- 
munity.    And,  according  to  the  well  established   rules  of   the 


KES   GESTAE.  131 

English  courts,  all  the  witnesses  present  at  the  transaction,  should 
be  called  by  the  prosecution,  before  the  prisoner  is  put  to  his 
defense,  if  such  witnesses  be  present,  or  clearly  attainable.  See 
Maker  v.  People,  10  Mich.  225,  81  Am.  Dec.  781.  The  English 
rule  goes  so  far  as  to  require  the  prosecutor  to  produce  all  present 
at  the  transaction,  though  they  may  be  the  near  relatives  of  the 
prisoner.  See  Reg.  v.  Chapman.,  8  Car.  &  P.  559;  Reg.  v. 
Orchard,  8  Car.  &  P.  565,  note;  Roscoe,  Crim.  Ev.  161.  Doubt- 
less, where  the  number  present  has  been  very  great,  the  produc- 
tion of  a  part  of  them  might  be  dispensed  with,  after  so  many 
had  been  sworn  as  to  lead  to  the  inference  that  the  rest  would  be 
merely  cumulative,  and  where  there  is  no  ground  to  suspect  an 
intent  to  conceal  a  part  of  the  transaction. 

c.  A  New  York  Case. — In  a  recent  criminal  case  decided  by 
the  New  York  court  of  appeals,  the  late  Chief  Justice  Folger, 
writing  for  affirmance  and  voicing  the  prevailing  opinion  of  that 
distinguished  court,  took  occasion  to  commit  the  appellate  bench 
to  some  very  radical  conclusions  upon  this  subject  of  res  gestae. 
The  case  arose  under  an  indictment  for  grand  larceny,  and  the 
defendant  in  error  offered  to  prove  what  was  said  as  to  the  mode 
of  obtaining  the  property,  by  the  men  of  whom  he  alleged  that 
he  had  bought  it  at  the  time  of  the  alleged  purchase.  His  honor 
says: 

"It  was  doubtless  hearsay,  and  was  not  competent  testimony  to 
prove  that  the  alleged  vendors  came  by  the  property  in  the  mode 
asserted.  But  as  it  was  competent  for  the  defendant  to  prove  the 
acts  by  which  the  goods  came  into  his  possession,  if  he  was  able 
to,  it  was  competent  to  prove  all  pertinent  sayings  and  doings 
that  then  were  made  and  done,  as  relevant  upon  the  issue  of 
guilty  knoAvledge.  It  was  competent.  It  was  for  the  jury  still 
to  say  whether  it  was  of  weight  in  showing  the  prisoner  innocent 
in  the  transaction,  if  they  found  that  the  transaction  took  place  as 
he  testified.  Rex  v.  Whitehead,  1  Car.  &  P.  67;  Powell  v.  Harper, 
5  Car.  &  P.  590;  Hay  slip  v.  Gymer,  1  Ad.  &  El.  162.  The  cases 
to  the  contrary,  cited  from  3  Park.  Crim.  Pep.,  People  v.  Ran  do. 
p.  335,  and  Wills  v.  People,  p.  473,  were  doubtingly  decided. 
On  principle,  such  evidence  must  be  competent.  It  is  the  rule, 
generally  speaking,  that  declarations  accompanying  acts  are 
admissible  in  evidence  as  showing  the  nature,  character  and 
object  of  such  acts.     1  Stark.  Ev.  51,  S7.     The  direct  proof  of 


132  LAW    OF    EVIDENCE    IN    CRIMINAL    CASES. 

knowledge  of  the  larceny,  is  not  needed  to  convict  of  receiving 
stolen  goods  with  guilty  knowledge.  That  knowledge  may  be 
gathered  from  the  circumstances  of  the  case,  of  which  one  is  the 
buying  the  goods  at  an  under  valuation.  1  Halstead,  Dig.  Ev. 
619;  2  East,  P.  C.  chap.  16,  p.  765,  §  153.  If  the  circumstances 
of  the  case  and  such  buying  are  proof  tending  to  show  guilty 
knowledge,  then  whatever  that  is  relevant,  that  was  said  at  the 
time  of  the  buying,  is  a  part  of  the  res  gestae,  and  competent  to 
explain  the  act.  And  see  Reg.  v.  Wood,  1  Fost.  &  F.  497;  1 
Phil.  Ev.  (7th  ed.)  231.  Of  course,  the  jury  are  not  bound  to 
believe  cither  that  the  statements,  if  made,  were  true,  or  that  the 
prisoner  believed  them  to  be  true  and  was  moved  by  them,  or 
that  they  were  in  fact  made  to  him.  Like  all  other  testimony,  it 
is  to  be  given  to  them  for  what  it  is  worth,  and  it  is  for  them  to 
give  to  it  the  value  it  deserves.     People  v.  Bowling,  81  N.  Y.  478. 

The  defendant  is  entitled  to  the  admission  of  evidence  of  a  con- 
versation tending  to  exculpate  him  and  forming  part  of  the  res 
gestae.     People  v.  DeGraff,  6  K  Y.  S.  K.  412.  " 

The  rules  expressive  of  the  prevailing  views  upon  this  subject 
of  res  gestce,  are  fully  stated  in  1  Rice,  Civil  Evidence,  section 
212.  chapter  10,  p.  375.  If  desirable  to  pursue  the  topic  in 
detail,  the  practitioner  is  referred  to  that  part  of  this  under- 
taking. 


CHAPTER  XIV. 


HEARSAY  EVIDENCE. 


§  84.   Rule  in  Civil  Cases  Applied. 

85.  General  Rule  Excluding. 

86.  Exceptions  Noted  by  a  Prominent  Text  Writer. 

87.  When  the  Ride  in  Civil  Cases  does  not  Apply. 

88.  The  Rule  from  Roscoe, 

The  subject  of  hearsay  evidence  will  be  accorded  very  meagre 
treatment  in  this  immediate  connection.  The  thoroughness  with 
which  the  entire  topic  was  canvassed  in  chapter  10  of  volume  1 
of  Evidence  in  Civil  Cases  obviates  all  necessity  for  further 
notice.  Nothing  can  be  added  to  the  exposition  already  given, 
and  considerations  of  space  alone  will  preclude  any  attempt  at  a 
duplication  of  the  views  previously  expressed,  through  nearly  70 
pages  of  the  chapter  referred  to. 

§  84.  Rule  in  Civil  Cases  Applied.— The  same  exclusionary 
rules  which  are  observed  in  civil  cases  relative  to  the  introduction 
of  this  peculiar  grade  of  evidence,  obtain  with  equal  force  in 
criminal  cases:  and  the  same  exception  which  public  policy  and 
the  obvious  demands  of  justice  have  engrafted  upon  these  exclu- 
sionary rules  by  which  hearsay  evidence  is,  under  proper  condi- 
tions, admissible,  obtains  equally  in  criminal  as  in  civil  cases.  No 
legal  pr<  (position  that  we  can  state  has  received  more  extensive 
endorsement  than  that  which  accords  to  the  rule  of  evidence  the 
same  force  and  pertinency  in  criminal  as  in  civil  cases.  Clearly, 
if  the  object  of  all  evidence  is  the  ascertainment  and  development 
of  truth,  the  regulations  and  formulas  which  are  supposed  to 
assist  in  its  development  should  not  be  placed  in  a  condition  of 
estrangement  merely  because  the  fact  to  be  developed  arises  in 
different  forms  of  action. 

-•">.  Geiieral  Rule  Excluding. — Hearsay  evidence  is  inad- 
missible, to  establish  any  specific  fact  capable  of  direct  proof  by 
witnesses,  speaking  from  their  own  knowledge,  and  when  the  rule 
is  relaxed,  it  is  from  necessity  alone.  Ovt  rstre<  1  v.  Sf.it, ,  :;  !  [ow. 
(Miss.)  328;  Wooster  v.  State,  55  Ala.  221. 

133 


134  LAW    OF    EVIDENCE    IN    CRIMINAL   CASES. 

After  such  an  inveterate  and  universal  acceptance  of  a  rule 
acknowledged  to  be  of  great  practical  importance  and  frequent 
application,  it  must  be  considered  that  the  time  has  passed  for 
testing  its  correctness  by  the  criterion  of  speculation.  If  such  a 
rule  of  evidence,  after  so  conspicious  and  protracted  an  existence, 
is  to  be  pushed  aside,  or  even  is  to  be  considered  as  liable  to 
challenge  on  theoretic  grounds,  it  is  difficult  to  divine  upon  what 
stable  basis  the  administration  of  the  law  is  to  be  conducted. 
Graves  v.  State,  45  N.  J.  L.  203. 

There  is  no  rule  in  the  law  of  evidence  more  important  or  more 
frequently  applied  than  the  general  one,  that  hearsay  evidence  of 
a  fact  is  not  admissible.  If  any  fact  is  to  be  substantiated  against 
a  person,  it  ought  to  be  proved  in  his  presence  by  the  testimony 
of  a  witness  sworn  to  speak  the  truth;  and  the  reason  of  the  rule 
is,  that  evidence  ought  to  be  given  under  the  sanction  of  an  oath, 
and  the  person  who  is  to  be  affected  by  the  evidence  may  have  an 
opportunity  of  interrogating  the  witness  as  to  his  means  of  knowl- 
edge, and  concerning  all  the  particulars  of  his  statement.  There 
are,  however,  certain  instances  where  hearsay  evidence  is  admis- 
sible, because  either  the  objection  does  not  apply,  or  from  the 
necessity  of  the  case  the  rule  is  relaxed. 

When  hearsay  is  introduced,  not  as  a  medium  of  proof  in  order 
to  establish  a  distinct  fact,  but  as  being  in  itself  a  part  of  the 
transaction  in  question,  it  is  then  admissible;  for  to  exclude  it 
might  be  to  exclude  the  only  evidence  of  which  the  nature  of  the 
case  is  capal  >le.  And,  generally  speaking,  declarations  accompany- 
ing acts  are  admissible  in  evidence  as  showing  the  nature,  char- 
acter, and  objects  of  such  acts.     2  Russell,  Crimes,  §  3. 

In  2  Best,  Ev.  §  506,  under  the  head  of  "  Res  inter  alios  acta," 
it  is  said :  "  No  person  is  to  be  affected  by  the  words  or  acts  of 
others,  unless  he  is  connected  with  them,  either  personally  or  by 
those  whom  he  represents,  or  by  whom  he  is  represented."  State 
v.  Beaudet,  53  Conn.  536,  55  Am.  Rep.  155. 

§  86.  Exceptions  Noted  by  a  Prominent  Text  Writer.— 
Hearsay  (derivative,  or  secondhand,  as  opposed  to  secondary) 
evidence  is  that  which  is  learnt  from  some  one  else,  whether  by 
word  of  mouth  or  otherwise;  in  other  words,  it  is  anything  which 
does  not  derive  its  value  solely  from  the  credit  given  to  the  wit- 
ness himself,  but  which  rests  also,  in  part  on  the  veracity  and 
competence  of  some  other  person. 


HEAKSAY    EVIDENCE.  135 

Harris  well  known  Treatise  on  Criminal  Law  tabulates  ei°-ht 
■exceptions  to  the  rule  rejecting  hearsay  evidence. 

The  reasons  usually  assigned  for  the  rejection  of  hearsay  evi- 
dence are  two:  (a)  that  the  original  statement  or  writing  was 
not  made  an  oath;  (b)  that  the  party  affected  has  not  the  oppor- 
tunity of  cross-examining  the  originator  of  it.  Its  reception 
would  also  have  the  effect  of  lengthening  the  proceedings,  with- 
out any  corresponding  advantage.  "We  have  seen  that  secondary 
evidence  can  be  given  only  where  there  has  been  an  explanation 
of  the  absence  of  the  best  evidence;  secondhand  evidence  cannot 
be  given  at  all,  subject  to  the  following  exceptions : 

1.  To  prove  the  death  of  a  person  beyond  the  sea. 

2.  To  prove  a  prescription,  a  custom,  matters  of  pedigree,  repu- 
tation on  questions  of  public  or  general  right. 

3.  "When  the  hearsay  is  what  the  witness  has  been  heard  to  say 
at  another  time,  in  order  to  invalidate  or  confirm  his  testimony 
given  in  court.  [This  is  not  hearsay.  The  evidence  is  direct  and 
primary  that  the  witness  made  a  certain  statement;  there  is  no 
evidence,  in  such  case,  either  direct  or  hearsay,  as  to  the  truth  of 
the  matter  contained  in  the  statement.] 

4.  Declarations  made  by  persons  under  the  sensible  conviction 
of  their  impending  death.  Such  declarations  are  admitted  only 
when  the  death  of  the  deceased  is  the  subject  of  the  charge  (that 
is,  in  cases  of  murder  or  manslaughter)  and  only  if  the  declara- 
tion refers  to  the  injury  which  is  the  cause  of  death. 

5.  Statements  made  by  deceased  persons,  if  against  their  inter- 
est, or  entries  made  by  them  in  the  regular  course  of  their  duty 
or  employment. 

6.  "When  the  bodily  or  mental  feelings  of  a  person  are  material 
to  be  proved,  the  usual  expressions  of  such  feelings,  made  at  the 
time  in  question,  are  admissible  as  original  evidence;  for  example, 
what  was  said  to  a  surgeon  immediately  after  an  assault. 

7.  When  the  sayings,  etc.,  of  another  are  part  of  the  res  gestae, 
that  is,  of  the  general  transaction,  and  are  not  merely  a  medium 
of  proof  of  another  fact.  Thus  the  cries  of  a  person  being  stabbed, 
in  a  mob,  are  good  evidence.  In  fact,  these  are  not  strictly 
instances  of  hearsay  evidence  at  all,  but  the  original  proofs  of 
what  took  place. 

8.  Evidence,  in  the  second  trial,  of  testimony  given  by  a  wit- 
ness now  deceased,  at  a  former  trial  of  the  same  case  between  the 
eaiue  parties.. 


136  LAW    OF    EVIDENCE   IN    CRIMINAL    CASES. 

It  will  be  convenient  here  to  notice  the  rule  that  if  a  witness  is 
dead,  or  too  ill  to  travel  (or  kept  out  of  the  way,  as  against  the 
person  so  keeping  him  out)  his  depositions  may  be  read  provided 
that  such  depositions  wore  taken  in  the  presence  of  the  accused,, 
and  that  he  had  an  opportunity  of  cross-examining  the  witness. 
Harris,  Crim.  Law,  p.  371. 
To  this  category  should  be  added  the  familiar  clause : 
"  The  acts  or  declarations  of  a  deceased  person  with  respect  to 
tlie'  relationship,  birth,  marriage  or  death  of  any  person  related  by 
blood  or  marriage  to  a  deceased  person  is  relevant  when  such  act 
or  declaration  occurred  before  the  question  had  arisen  in  respect 
to  which  it  is  to  be  proved,  and  the  fact  to  be  proved  by  it  is  a 
fact  in  issue."     See  Kice,  Civil  Evidence,  chap.  10. 

§  87.  When  the  Rule  in  Civil  Cases  does  not  Apply. — 

Another  objection  to  the  rule  rejecting  hearsay  evidence  arises  in 
civil  cases  when  the  declaration  proved  is  adverse  to  the  interests 
of  the  party  making  it;  and  it  further  appears  that  the  declarant 
is  dead  or  beyond  the  jurisdiction.  But  the  utmost  industry  fails 
to  disclose  a  solitary  instance  in  criminal  prosecutions  where  this 
rule  has  been  accorded  the  least  consideration.  This  subject  was 
recently  under  careful  examination  in  the  United  States  district 
court,  and  the  conclusion  reached  furnishes  sufficient  authority 
for  the  foregoing  text.  See  United  States  v.  Mulholland,  50 
Fed.  Rep.  113.  See  also  Snow  v.  State,  58  Ala.  375;  Daniel  v. 
State,  65  Ga.  200;  Greenfield  v.  People,  85  N.  Y.  75,  39  Am. 
Rep.  636;  CooTcham  v.  State,  5  W.  Va.  510;  Bowen  v.  State,  3 
Tex.  App.  623;  Peck  v.  State,  SG  Tenn.  2G7;  State  v.  White,  68 
X.  C.   L58. 

An  illustration  is  afforded  of  the  doctrine  under  review  in  all 
where,  as  a  part  of  the  exculpatory  evidence,  it  is  sought  to 
prove  admissions  made  by  absent  parties  tending  to  show  that 
tiny  themselves  were  guilty  of  the  crime  and  not  the  person  on 
trial.  Such  testimony  in  criminal  cases  is  unquestionably  incom- 
petent. 

;  88.  The  Rule  from  Roscoe. — Evidence  of  facts  with  which 

the  witness  is  not  acquainted  of  his  own  knowledge,  but  which  he 
merely  states  from  the  relation  of  others,  is  inadmissible  upon  two 
grounds.  First,  that  the  party  originally  stating  the  facts  does 
not  make  the  statement  under  the  sanction  of  an  oath;  and  sec- 
ondly, that  the  party  against  whom  the  evidence  is  offered  would 


HEARSAY   EVIDENCE.  137 

lose  the  opportunity  of  examining  into  tlie  means  of  knowledge 
of  the  party  making  the  statement.  A  less  ambiguous  term  by 
which  to  describe  this  species  of  evidence  is  secondhand  evidence. 
The  term  hearsay  evidence  is  often  applied  to  that  which  is  really 
not  so  in  the  sense  in  which  the  term  is  generally  used.  Thus, 
where  the  inquiry  is  into  the  nature  and  character  of  a  certain  trans- 
action, not  only  what  was  done,  but  also  what  was  said  by  those 
present  during  the  continuance  of  the  transaction,  is  admissible; 
and  this  is  sometimes  represented  as  an  exception  to  the  rule 
which  excludes  hearsay  evidence.  But  this  is  not  hearsay  evi- 
dence; it  is  original  evidence  of  the  most  important  and  unexcep- 
tionable kind.  In  this  case,  it  is  not  a  secondhand  relation  of 
facts  which  is  received,  but  the  declarations  of  the  parties  of  the 
facts  themselves,  or  of  others  connected  with  them  in  the  transac- 
tion, which  are  admitted  for  the  purpose  of  illustrating  its  peculiar 
character  and  circumstances.     1  Roscoe,  Crim.  Ev.  p.  25. 

Hearsay  evidence  is  not  admissible  merely  because  in  the  par- 
ticular case  no  better  can  be  had.  State  v.  Dart,  1  Cow.  Crim. 
Rep.  49.  But  in  cases  of  pedigree  or  of  death  it  is  admissible  when 
from  great  lapse  of  time,  or  for  other  sufficient  cause,  the  law 
presumes  that  original  or  direct  evidence  is  not  attainable.  2 
Phil.  Ev.  (4th  Am.  ed.)  238;  1  Phil.  Ev.  (4th  Am.  ed.)194,  197: 
Cowen  &  Hill,  Notes,  012;  Higman  v.  Ridgway,  In  East,  120, 
129;  Jackson  v.  Brovmer,  18  Johns.  39;Zeggett  v.  Boyd,  3  Wend. 
379;  CaujoUe  v.  Ferrie,  26  Barb.  177;  Stein  v.  Bowman,  38  U. 
S.  13  Pet.  220,  10  L.  ed.  134;  Mima  Queen  v.  Hepburn,  11  U. 
S.  7  Cranch,  290,  3  L.  ed.  318;  Jackson  v.  Etz,  5  Cow.  319;  Fos- 
gatt  v.Herkimer  Mfg.  &  H.  Co.  12  Barb.  352;  Augustus  v. 
Graves,  9  Barb.  590. 

Extreme  thoroughness  has  characterized  the  preceding  treat- 
ment of  this  subject  and  the  practitioner  is  referred  to  1  Rice, 
( livil  Evidence,  chap.  10,  for  further  views  respecting  it. 


CHAPTEE  XV. 

QUESTIONS  OF  LAW    AND  FACT. 

§  89.  Preliminary  View. 

90.  Tlie  Jury  as  Judges  of  the  Law  and  the  Fact. 

91.  Decisions  Considered. 

92.  Plea  of  not  Guilty  Raises  a  Question  of  Fact. 

93.  Evidence  of  Habit  is  a  Question  of  Fact. 

94.  The  Result  Stated. 

§  SO.  Preliminary  Tiew. — We  consider  it  a  well  settled  prin- 
ciple and  rule,  lying  at  the  foundation  of  jury  trial,  admitted  and 
recognized  ever  since  this  system  was  adopted  as  an  established 
and  settled  mode  of  proceeding  in  courts  of  justice,  that  it  is  the 
proper  province  and  duty  of  judges  to  consider  and  decide  all 
questions  of  law  which  arise,  and  that  the  responsibility  of  a  cor- 
rect decision  is  placed  finally  on  them;  that  it  is  the  proper  prov- 
ince of  the  jury  to  weigh  and  consider  evidence,  and  decide  all 
questions  of  fact,  and  that  the  responsibility  of  a  correct  decision 
in  the  first  instance  is  placed  upon  them.  The  safety,  efficacy 
and  purity  of  jury  trial  obviously  depends  upon  the  steady  main- 
tenance and  practical  application  of  this  principle.  It  would  be 
alike  a  usurpation  of  authority  and  violation  of  duty,  for  a  court, 
on  a  jury  trial,  to  decide  authoritatively  on  the  questions  of  fact 
and  for  the  jury  to  decide  ultimately  and  authoritatively  upon  the 
questions  of  law.  In  deciding  upon  this  question  of  fact  however, 
the  jury  are  at  liberty  to  consider  that  in  the  vast  majority  of 
cases  (except  as  otherwise  provided  by  statute)  the  evidence  of 
one  witness  who  is  entitled  to  credit  is  sufficient  to  prove  any 
fact. 

If  the  jury  are  the  sole  judges  of  the  law  without  any  aid  from 
the  court  in  its  exposition  and  application,  then  whenever  the 
court  instructs  either  for  the  prosecution  or  the  accused,  it  invades 
the  province  of  the  jury.  Whilst  accused  insists  that  the  province 
of  the  jury  is  invaded,  he  would  not  hesitate  to  demand  a  new 
trial  if  the  jury  had  found  against  the  law  as  given  to  them  by  the 
court.  Hence,  he  would,  in  such  case,  appeal  from  the  jury  to 
the  court,  upon  the  grounds  that  the  court  ultimately,  and  not  the 

138 


QUESTIONS    OF    LAW    AND    FACT.  139 

jury,  has  the  right  to  reverse  the  decision  of  the  jury  as  to  the 
law  of  the  case,  and  because  the  court  has  the  right  to  inform  the 
jury  as  to  the  law  and  to  enforce  its  decisions  when  disregarded, 
and  against  the  accused,  in  criminal  cases,  as  well  as  in  civil  cases. 
"It  is  not  unreasonable  to  require  the  jury  to  say  they  know 
the  law  better  than  the  court  before  they  disregard  its  instructions. 
See  Schnier  v.  People,  23  111.  17;  Fisher  v.  People,  23  111.  283, 
and  Mullinix  v.  People,  76  111.  211,  where  this  form  of  instruc- 
tion is  approved  and  sanctioned."  Anderson  v.  State,  101  Ind. 
467,  5  Am.  Crim.  Kep.  601,  note. 

§  90.  The  Jury  as  Judges   of  the  Law  and  the  Fact. — 

The  principle  receives  sturdy  support  in  numerous  cases  that  "in 
all  criminal  prosecutions,  the  jury  must  have  the  right  to  deter- 
mine the  law  and  the  facts." 

In  the  case  of  Barker  v.  State,  48  Ind.  163,  Buskirk,  ,/.,  who 
wrote  the  opinion,  quoted  from  Graham  &  Waterman  on  New 
Trials,  with  approval,  the  following:  '"When  there  is  testimony 
which  has  any  legal  effect  in  a  cause,  it  would  be  error  in  the 
court  to  determine  the  weight  of  it,  and  the  fact  which  it  did  or 
did  not  ascertain.  But  whether  evidence  tends  to  prove  anything 
pertinent  to  the  issue,  is  a  question  for  the  court;  and  if  there  be 
no  testimony  that  ought  to  have  any  legal  effect,  it  is  not  error 
for  the  court  to  inform  the  jury  that  it  does  not  prove  what  it 
does  not  tend  to  prove." 

In  the  case  of  Brooks  v.  State,  90  Ind.  428,  the  court,  in  com- 
menting upon  the  instructions  in  that  case,  said :  "Under  our 
system  of  practice,  the  court  may  sum  up  the  evidence  and  submit 
hypothetical  cases  to  the  jury,  but  to  do  either  of  those  things 
thoroughly  and  well  usually  requires  very  great  care.  It  is  a 
hazardous  proceeding  for  the  court,  either  directly  or  through  the 
medium  of  hypothetical  cases,  to  attempt  any  comments  upon  the 
evidence,  and  particularly  to  express  any  opinion  upon  it  beyond 
an  intimation  or  statement  as  to  what  certain  evidence  may  tend 
to  prove.  The  safer  way  is  for  the  court  to  announce  general 
principles  applicable  to  the  salient  points  of  the  evidence,  and 
leave  all  inferences  from  facts  apparently  proven,  or  which  the 
evidence  tended  to  establish,  to  the  jury." 

The  provision  that  the  jury  shall  have  the  right  to  determine 
the  law  and  the  facts  evidently  means  that  the  jury  have  the  right 
to  determine  all  questions  of  law  applicable  to  such  matters  as 


110  LAW    OF   EVIDENCE   IN   CEIMINAL    CASES. 

they  are  required  to  consider  in  making  up  their  verdict,  but  can- 
not be  rightfully  construed  to  mean  that  the  jury  are  the  sole 
judges  of  i  he  law  in  every  respect  in  a  criminal  cause.  The  court 
judges  of  the  sufficiency  of  an  indictment  under  the  law.  It  de- 
cides all  questions  of  law  arising  upon  the  admissibility  of  evi- 
dence, and  has  the  power  to  grant  a  new  trial  when  the  jury  have 
erroneously  determined  the  law  injuriously  to  the  defendant. 
The  judge,  too,  is  required  to  instruct  the  jury  upon  all  matters 
of  law  necessary  for  their  information  in  the  rendition  of  a  ver- 
dict in  a  criminal  cause.  Thus,  instructing  the  jury  involves,  in 
a  qualified  sense,  at  least,  the  exercise  of  a  judgment  upon  all 
matters  of  law  concerning  which  the  judge  must  give  information 
to  the  jury.  The  jury  are,  consequently,  not,  strictly  speaking, 
the  sole  judges  of  the  law  in  all  its  relations  to  a  criminal  case. 
Anderson  v.  State,  10-1  Ind.  467. 

§  91.  Decisions  Considered. — All  the  authorities  tend  to  the 
same  result.  "It  is  the  duty  of  the  jury  to  act  upon  the  facts. 
It  is  the  duty  of  the  court  to  decide  the  law.  The  facts  being 
specially  found  by  the  jury,  it  is  the  duty  of  the  court,  not 
of  the  jury,  to  pronounce  the  judgment  of  guilty  or  not 
guilty.  The  facts  being  fully  conceded,  it  is  the  duty  of 
the  court  to  announce  and  direct  what  the  verdict  shall  be, 
whether  guilty  or  not  guilty.  Therefore,  I  cannot  doubt  the 
power  and  the  duty  of  the  court  to  direct  a  verdict  of  guilty, 
whenever  the  facts  constituting  guilt  are  undisputed."  United 
States  v.  Anthony,  11  Blatchf.  200,  opinion  by  Hunt,  J. 

In  the  case  of  People  v.  Bennett,  19  N.  Y.  137,  the  court  of 
appeals  of  the  state  of  New  York,  through  its  Chief  Judge,, 
uses  the  following  language:  "Contrary  to  an  opinion  formerly 
prevailing,  it  has  been  settled  that  the  juries  are  not  judges  of 
the  law,  as  well  as  the  facts,  in  criminal  cases,  but  that  they  must 
take  the  law  from  the  court.  All  questions  of  law  arising  during 
the  trial  are  to  be  determined  by  the  court,  and  it  is  the  duty  of 
the  jury  to  regard  and  abide  by  such  determination." 

In  (  nit(  d  States  v.  Anthony,  supra,  the  question  was,  whether 
the  court  had  power  to  direct  a  verdict  of  not  guilty;  and  the 
Chief  Justice  says,  the  rule  results  from  the  principle  that  the 
jury  must  take  the  law  from  the  court.  The  duty  of  the  jury  to 
take  the  law  from  this  source  is  precisely  the  same  whether  it  is 
favorable  or  unfavorable  to  the  accused. 

As  illustrative  of  another  phase  of  the  same  subject,  it  is  com- 


QUESTIONS    OF    LAW    AND    FACT.  141 

petent  to  refer  to  the  familiar  rule  that  it  is  not  the  province  of 
the  court  to  instruct  the  jury  that  insanity  is  a  physical  disease. 
It  is  a  quest-ion  of  fact,  to  be  determined  from  the  evidence,  . 
whether  insanity  exists,  and  what  its  character  and  extent  is;  and 
not  one  to  he  determined  as  a  matter  of  law  by  the  court.  Grubb 
v.  State,  117  Ind.  277.  The  province  of  the  court  is  to  state  the 
general  rules  of  law  to  the  jury,  and  it  has  no  right  to  charge,  as 
matter  of  law,  that  insanity  is  a  physical  disease  of  any  particular 
organ  of  the  body.  It  is  not  safe  to  take  from  works  upon  medi- 
cal jurisprudence  definitions  of  insanity,  for  they  are,  in  many 
instances,  merely  speculative  opinions,  and  they  are  also  opinions 
upon  a  subject  on  which  it  is  impossible  to  reconcile  the  discord- 
ant views  of  theoretical  writers.  It  must,  in  each  particular  case, 
be  a  question  of  fact  to  Lie  determined  from  the  evidence  whether 
there  was  insanity,  and  what  was  its  cause  and  character.  Plake 
v.  State,  121  Ind.  133. 

It  is  quite  unnecessary  to  add  that  if  the  evidence  is  of  "such  a 
character  as  to  create  a  reasonable  doubt  whether  the  accused  was 
of  unsound  mind  at  the  time  the  crime  was  committed  he  is  enti- 
tled to  a  verdict  of  acquittal.  Polk  v.  State,  19  Ind.  170,  80  Am. 
Dec.  3S2;  Bradley  v.  State,  31  Ind.  492;  McDougal  v.  State,  88 
Ind.  21. 

A  masterly  analysis  and  review  of  this  subject  by  Chief  Justic< 
Shaw  will  be  found  in  Com.  v.  Anthes,  5  Gray,  185.  There  are 
less  elaborate  but  equally  forcible  statements  of  the  theory  by 
Story,  J.,  in  United  States  v.  Battiste,  2  Sumn.  240;  by  Curtis, 
J.,  in  United  States  v.  Morris,  1  Curt,  C.  C.  23;  by  Gilchrist,  J., 
in  Pierce  v.  State,  13  K  H.  536;  and  by  Shaw,  Ch.  J.,  in  Com. 
v.  Porter,  10  Met.  203.  See  also  Montgomery  v.  State,  11  Ohio, 
427:  Montee  v.  Com.  3  Marsh.  J.  J.  149;  Tcwnsend  v.  State,  2 
.Blackf.  151;  Pierson  v.  State,  12  Ala.  153;  Hardy  v.  State,  7 
Mo.  G07;  Mis  v.  State,  2  Tex.  2S0;  Brown  v.  Com.  86  Ya.  466; 
and  lastly  in  England  by  Mr.  Ilargrave  in  his  note  to  Coke  Litt. 
155  o. 

In  People  v.  Dick,  32  Cal.  216,  the  court  says:  "It  is  better 
for  the  court,  in  charging  the  jury  in  a  criminal  case,  t<>  avoid 
assuming  any  material  fact  as  proved,  however  clear  to  the  mind 
of  the  court  such  fact  may  seem  to  be  established,  because  it  is 
the  province  of  the  jury,  unaided  by  the  judge,  to  say  whether  a 
fact  is  proved  or  otherwise." 


142  LAW    OF   EVIDENCE   IN    CRIMINAL   CASES. 

And  in  State  v.  Whitney,  7  Or.  336,  Kelly,  Ch.  J.,  said:  "It  m 
the  exclusive  province  of  the  jury  to  determine  questions  of  fact. 
They  and  they  only  have  a  right  to  judge  of  the  credibility  of 
witnesses,  and  the  weight  and  effect  of  their  testimony.  And  it 
has  always  been  held  to  be  an  erroneous  instruction  when  the 
court  assumed  any  controverted  fact  to  be  proven,  instead  of  sub- 
mitting to  the  jury  the  question  whether  or  not  it  has  been  estab- 
lished  by  the  testimony  before  them."  State  v.  MacTtey,  12  Or. 
154. 

§  92.  Plea  of  not  Guilty  Raises  a  Question  of  Fact.— The 
plea  of  not  guilty  is  a  denial  of  every  material  allegation  in  the- 
indictment.  All  matters  of  fact,  tending  to  establish  a  defense, 
may  be  given  in  evidence  under  the  plea  of  not  guilty.  If  the' 
defendant  refuse  to  answer  an  indictment  by  demurrer  or  plea,  a. 
plea  of  not  guilty  must  be  entered.  N.  T.  Code  Crim.  Proc. 
§§  33S,  339,  342. 

§  93.  Evidence  of  Habit  is  a  Question  of  Fact. — The  gen- 
eral rule  forbids  the  opinions  or  conclusions  of  witnesses  from 
being  given  in  evidence;  but,  whether  or  not  a  person  possesses  a. 
certain  habit,  is  rather  a  question  of  fact  than  of  opinion  or  con- 
dition. It  respects  a  person's  condition,  as  to  which  witnesses 
are  often  allowed  to  speak  without  being  confined  to  a  narration 
of  the  particulars  which  go  to  constitute  the  condition.  Thus, 
under  proper  circumstances,  a  common  witness  may  testify  direct- 
ly as  to  sanity,  solvency  or  insolvency;  as  to  a  person  being  sick 
or  in  pain;  and,  as  in  People  v.  Eastwood,  14  1ST.  Y.  566,  whether 
a  person  was  drunk  or  sober;  whether  a  horse  was  a  safe  and  kind, 
horse.  See  Sydh  id  an  v.  Beckwith,  43  Conn.  13,  where  is  quite  a 
collection  of  instances  where  common  observers,  not  experts,  may 
give  their  opinions.  In  Stanley  v.  State,  26  Ala.  26,  and  JElam 
v.  State,  25  Ala.  56,  the  allowance  of  precise  direct  evidence  of 
intemperate  habits  was  sustained.  Gallagher  v.  People,  120  111. 
179. 

Whether  a  person  possesses  a  certain  habit,  is  a  question  of  fact, 
to  which  any  person  knowing  may  testify.  Abbott,  Trial  Ev.  7-78;. 
Stanley  v.  State,  and  Elam  v.  State,  supra;  Spear  v.  Drainage 
Comrs.  113  111.  634;  Bank  of  Middlebury  v.  Butland,  33  Yt. 
414;  Sydleman  v.  Beckwith,  and  People  v.  Eastwood,  supra/ 
Dahmer  v.  State,  r>r>  Miss.  789;  Mopes  v.  People,  69  111.  530. 

§  94.  The  Result  Stated. — Lastly,  it  should  be  remembered 


QUESTIONS    OF   LAW   AND   FACT.  143 

that  there  is  no  line  of  distinction  better  defined  in  the  constitu- 
tion of  the  courts  of  criminal  jurisdiction  than  that  which  sepa- 
rates the  province  of  the  court  from  that  of  the  jury.  Ad  ques- 
tionem  juris  respond 'eant  judices,  ad  quest  ion  emfacti  respondeat 
juratores,  is  the  law  maxim  which  defines  the  line  of  separation. 
An  intelligent  and  conscientious  jury  will  look  to  the  court,  in  the 
trial  of  the  capital  case,  with  confidence  and  reliance,  for  instruc- 
tion and  guidance  as  to  the  law  of  the  case,  and  all  things  exclu- 
sively within  his  province.  In  addition  to  their  obligation  to 
accept  the  law  as  he  pronounces  it,  they  naturally  trust  to  his 
superior  knowledge  and  his  larger  experience.  Gordon  v.  People, 
33  N.  Y.  501. 

Logically  considered,  the  trial  of  a  criminal  case  is  an  effort  to 
complete  a  final  syllogism,  having  for  one  premise,  matter  of  law: 
for  the  other,  matter  of  fact;  and  for  the  conclusion,  the  resulting 
proposition  of  guilty  or  not  guilty.  It  is  the  duty  of  the  judge 
to  supply  the  jury  with  material  for  the  major  premise  of  this 
syllogism;  and  it  is  the  duty  of  the  jury  to  collect  from  the  evi- 
dence the  minor  premise,  compare  the  two.  draw  the  conclusion.: 
and  declare  it  in  their  verdict.     Habersham  v.  State,  56  Ga.  Gl. 


CIIAPTEE  XVI. 

SCIENTIFIC  BOOKS  IN  EVIDENCE. 

§  95.  Species  of  Evidence  not  Favored. 

90.  Not  Read  in  Argument  to  Jury. 

97.  Partial  Review  of  Authorities. 

98.  Views  of  Mr.  Moak. 

99.  Exception  Noted. 

§  95.  Species  of  Evidence  not  Favored. — Although  the 
courts  are  not  uniform  in  their  holdings  upon  the  admissibility  in 
evidence  of  medical  and  scientific  books,  the  great  weight  of  au- 
thority is  to  the  effect  that  they  cannot  be  admitted  to  prove  the 
declarations  or  opinions  which  they  contain.  This  view  proceeds 
upon  the  theory  that  the  authors  did  not  write  under  oath,  and 
that  their  grounds  of  belief  and  processes  of  reasoning  cannot  be 
tested  by  cross-examination.  But  while  the  books  are  not  admis- 
sible, an  expert  witness  is  not  confined  wholly  to  his  personal 
experience,  but  his  opinions  formed  in  part  from  the  reading  of 
treatises  prepared  by  persons  of  acknowledged  ability  may  be 
given  in  evidence.  So,  also,  may  a  witness  refresh  his  recollec- 
tion by  reference  to  standard  authors;  but  the  judgment  or  opinion 
which  he  gives  must  be  his  own,  and  not  merely  that  of  the 
author. 

Dicta  are  to  be  found  in  the  reports  of  the  courts  of  several  of 
the  states  which,  disconnected  with  the  context,  would  seem  to 
support  the  proposition  that  counsel  may  be  permitted  to  read 
from  medical  works  of  established  credit  in  the  profession  "as 
part  of  his  argument."  But  in  one  only  of  the  cases,  so  far  as  we 
have  been  able  to  find,  was  it  decided  that  this  practice  was 
proper,  such  decision  being  necessary  to  the  conclusion  reached 
by  the  court. 

In  Yoe  v.  People,  49  111.  412,  it  was  said  that  where  the 
attorney  for  the  people,  against  the  objection  of  the  prisoner, 
read  copious  extracts  from  medical  works,  the  court  (without 
special  request  on  the  part  of  the  prisoner)  should  have  instructed 
the  jury  that  such  books  are  not  evidence,  but  theories  simply  of 
medical  men.     Even  if  we  should  accept  this  as  law,  the  judg- 

144 


SCIENTIFIC    BOOKS    IN    EVIDENCE.  145 

ment  in  the  present  case  must  be  reversed,  since  the  court  below 
did  not  so  instruct  the  jury.  In  Yoe  v.  People,  the  reading  of 
such  books  by  the  attorney  for  the  people  (in  the  absence  of  the 
instruction  mentioned)  was  held  to  be  error  and  the  judgment 
was  reversed.  In  our  view  the  court  came  to  the  proper  conclu- 
sion,— that  error  had  occurred.  People  v.  Wheeler,  60  Cal.  581,44 
Am.  Eep.  70. 

The  weight  of  current  authority  is  decidedly  against  the  admis- 
sion of  scientific  books  in  evidence  before  a  jury,  although  in 
some  states  they  are  admissible.  2  Greenl.  Ev.  §  440,  and  note; 
Whart.  Ev.  §  665;  Eogers,  Expert  Testimony,  §§  16S,  169,  et  seq., 
and  cases  cited  in  notes.  And  the  weight  of  current  authority  is, 
also,  against  allowing  such  treatises  to  be  read  from,  to  contradict 
an  expert,  generally.  Com.  v.Sturtwa/rtt,  117  Mass.  122,  19  Am. 
Rep.  401;  Davis  v.  State,  38  Md.  15;  State  v.  O'Brien,  7  R.  I. 
336.  "Where,  however,  an  expert  assumes  to  base  his  opinion 
upon  the  work  of  a  particular  author,  that  work  may  be  read  in 
evidence  to  contradict  him.  This  was,  in  effect,  the  ruling  in 
Connecticut  Mat.  L.  Ins.  Co.  v.  Ellis,  89  111.  516,  and  it  was  ex- 
pressly so  ruled  in  Pmney  v.  Cahill,  48  Mich.  584;  Ripon  v. 
Bittel,  30  ^Wis.  614,  and  Huffman  v.  Click,  77  X.  C.  55.  See 
.also  Marshall  v.  Brown,  50  Mich.  14S;  Rogers,  Expert  Testi- 
mony, §  181. 

Where  a  witness  says  a  thing  or  a  theory  is  so  because  a  book 
says  so,  and  the  book,  on  being  produced,  is  discovered  to  say 
directly  to  the  contrary,  there  is  a  direct  contradiction  which  any- 
body can  understand.  But  where  a  witness  simply  gives  his 
opinion  as  to  the  proper  treatment  of  a  given  disease  or  injury, 
and  a  book  is  produced  recommending  a  different  treatment,  at 
most  the  repugnance  is  not  of  fact,  but  of  theory;  and  any  num- 
ber of  additional  books  expressing  different  theories,  would 
obviously  be  quite  as  competent  as  the  first,  but  since  the  books 
are  not  admissible  as  original  cases  in  such  evidence  in  such  c 
it  must  follow  that  they  are  not  admissible  on  cross-examination 
where  their  introduction  is  not  for  the  direct  contradiction  of 
something  asserted  by  the  witness,  but  simply  To  prove  a  contrary 
theory.     Bloomington  v.  Shrock,  110  111.  219,  51  Am.  Rep.  679. 

In  Bijyon  v.  Bittel,  30  "Wis.  614,  the  question  was  on  the  ad- 
mission of  surgical  treatise  in  evidence.     The  court  said  that  it 
-was  urged  that  they  were  improperly  admitted,  and  should  only 
.     10 


146  LAW    OF   EVIDENCE   IN   CRIMINAL   CASES. 

have  been  allowed  to  be  read  in  argument,  and  that  "  such  per- 
haps may  be  the  general  rule."  But  their  admission  was  ap- 
proved. This  therefore  is  not  an  authority  on  the  point  in 
question. 

§  96.  Not  Bead  in  Argument  to  Jury. — In  Com.  v.  Wilson, 
1  Gray,  337,  Shaw,  Oh.  J.,  held  that  scientific  books  cannot  be- 
read  in  argument  to  the  jury.  He  said :  "  Facts  or  opinions  on 
the  subject  of  insanity,  as  on  any  other  subject,  cannot  be  laid 
before  the  jury  except  by  the  testimony  under  oath  of  persons 
skilled  in  such  matters.  Whether  stated  in  the  language  of  the 
court,  or  of  the  counsel  in  a  former  case,  or  cited  from  the  works 
of  legal  or  medical  writers,  they  are  still  statements  of  fact,  and 
must  be  proved  on  oath.  The  opinion  of  a  lawyer  on  such  a 
question  of  fact  is  entitled  to  no  more  weight  than  that  of  any 
other  person." 

§  97.  Partial  View  of  Authorities. — This  was  reiterated  by 
the  same  judge,  in  Ashworth  v.  Kittridge,  12  Cush.  193,  59  Am.. 
Dec.  178.  He  there  said  :  "  Where  books  are  thus  offered,  they 
are  in  effect  used  as  evidence,  and  the  substantial  objection  is  that 
they  are  statements  wanting  the  sanction  of  an  oath;  and  the 
statement  thus  proposed  is  made  by  one  not  present  and  not  liable 
to  cross-examination." 

In  People  v.  Anderson,  44  Cal.  65,  while  the  practice  was  con- 
sidered as  improper,  it  was  held  not  to  be  a  reversible  error, 
because  it  was  a  matter  within  the  discretion  of  the  trial  court, 
and  unreviewable  on  appeal  except  for  an  apparent  abuse  of  dis- 
cretion.    People  v.  Treadivell,  69  Cal.  226. 

And  in  Reg.  v.  Taylor,  13  Cox,  C.  C.  77,  it  was  held:  "Cases 
cited  in  books  on  medical  jurisprudence  are  not  admissible  even 
to  form  part  of  an  address  to  the  jury."  Counsel  for  defense,  in 
addressing  the  jury,  proposed  to  read  from  Taylor's  Medical  Jur- 
isprudence. Brett,  J.,  said  :  "  This  is  no  evidence  in  a  court  of 
justice.  It  is  a  mere  statement  by  a  medical  man  of  hearsay  facts 
of  cases  at  which  he  was  in  all  probability  not  present." 

To  the  same  effect  are  the  American  cases,  in  which  the  ques- 
tion is  fully  considered  and  decided.  In  State  v.  O'Hrien,  7  R. 
I.  338,  the  court  said  :  "  The  book  offered  to  be  read  to  the  jury 
was  not  admissible  as  evidence.  No  evidence  on  the  nature  of 
parol  testimony  could  properly  pass  to  them,  except  unaer  the 
sanction  of  an  oath;   and  upon  this*  ground  books  of  science  are 


SCIENTIFIC   BOOKS   IN   EVIDENCE.  147 

excluded,  notwithstanding  the  opinions  of  scientific  men  that  they 
are  books  of  authority  and  valuable  as  treatises.  Scientific  men 
are  permitted  to  give  their  opinions  as  experts,  because  given 
under  oath,  but  the  books  which  they  write  containing  them  are, 
for  want  of  such  oath,  excluded."  People  v.  Wheeler,  60  Cal.  581, 
44  Am.  Kep.  TO. 

Medical  books  are  not  addressed  to  common  readers,  but  require 
particular  knowledge  to  understand  them.  Every  one  knows  the 
inability  of  ordinary  persons  to  understand  or  discriminate 
between  symptoms  or  groups  of  symptoms,  which  cannot  always 
be  described  to  those  who  have  not  seen  them,  and  which  with 
slight  changes  and  combinations  mean  something  very  different 
from  what  they  mean  in  other  cases.  The  cases  must  be  very 
rare  in  which  any  but  an  educated  physician  could  understand 
detached  passages  at  all,  or  know  how  much  credit  was  due  to 
either  the  author  in  general  or  to  particular  parts  of  his  book. 
Scientific  men  are  supposed  to  be  able  from  their  study  and  ex- 
perience to  give  the  general  results  accepted  by  the  scientific 
world,  and  the  extent  of  their  knowledge  is  tested  by  their  per- 
sonal examination.  But  the  continued  changes  of  view  brought 
about  by  new  discoveries  in  most  matters  of  science,  and  the 
necessary  assumption  of  scientific  writers  of  some  technical  knowl- 
edge in  their  readers,  render  the  use  of  such  works  before  juries 
— especially  in  detached  portions  and  selected  passages — not  only 
misleading  but  dangerous.  The  weight  of  authority  is  against 
their  admission.  Such  books  may  be  read  to  discredit  a  witness 
who  has  testified  that  his  views  were  supported  by  such  authority. 
Pinney  v.  Cahill,  4S  Mich.  584.  Or  to  test  the  extent  of  an 
"  expert's"  knowledge  on  cross-examination.  Connecticut.  Ins.  Co. 
v.  Ellis,  89  111.  516.  But  see  generally,  Darljy  v.  Ouseley,  1  Hurlst. 
&  K  12;  Terry  v.  Ashton,  34  L.  T.  07;  Ashworth  v.  Kittrulge, 
12  Cush.  193;  Com.  v.  Brown,  121  Mass.  69;  Carter  v.  State,  2 
Ind.  617;  Gehrke  v.  State,  13  Tex.  56S;  Collier  v.  Simpson,  5 
Car.  &  P.  73;  Com.  v.  Sturtivant,  117  Mass.  122;  Brodhead  v. 
Wiltsee,  35  Iowa,  429;  Harris  v.  Panama  R.  Co.  3  Bosw.  7' 
People  v.  Hall,  48  Mich.  4S2. 

§  98.  Yiews  of  Mr.  Monk. — From  a  valuable  article  in  the 
Albany  Law  Journal,  of  Oct.  8,  1881,  I  extract  the  following  as 
illustrative  of  the  present  attitude  of  the  decisions  as  regards  the 
reading  of  scientific  books  to  the  jury. 


14:8  LAW    OF    EVIDENCE    IN    CRIMINAL    CASES. 

In  his  interesting  paper  on  "Experts  and  Expert  Testimony," 
21  Alb.  L.  J.  266,  Mr.  Moak  says:  "As  a  rule  scientific  works 
cannot  be  read  in  evidence  to  the  jury.  .  .  .  In  summing  up 
to  the  jury,  counsel  are  entitled  to  read  approved  scientific  works 
as  a  part  of  their  argument."  The  supreme  court  of  "Wisconsin 
holds  that  where  witnesses  examined  as  medical  experts  have  tes- 
tiiied  that  books  recognized  as  standard  authorities  in  the  profes- 
sion, lay  down  certain  propositions,  or  sustain  certain  conclusions, 
the  books  thus  referred  to  may  be  put  in  evidence  for  the  purpose 
of  discrediting  such  witnesses.  E'qwn  v.  Bittel,  30  Wis.  614.  In 
State  v.  Hoyt,  46  Conn.  330,  the  doctrine  as  laid  down  by  Mr. 
Moak  was  held,  but  two  judges  of  the  five  dissented.  In  Wis- 
n  and  Texas  the  matter  is  said  to  be  within  the  discretion  of 
the  court. 

It  seems  a  wrong  rule  that  counsel  may  read  to  the  jury  as  part 
of  his  argument,  on  scientific  facts,  books  which  cannot  be  put  in 
evidence  for  the  same  purpose.  Whether  the  scientific  opinion  is 
read  to  the  jury  as  evidence  or  as  part  of  an  argument  seems  to 
work  out  the  same  result,  namely,  to  get  before  the  jury  the 
opinion  of  an  expert,  at  secondhand,  and  with  no  opportunity  for 
cross-examination. 

Mr.  Moak  cites  three  cases  to  his  statement, — Legg  v.  Drake, 
1  Ohio  St.  286;  Beg.  v.  Courvoisier,  9  Car.  &  P.  302;  Bipon  v. 
Bittel,  30  "Wis.  614.  Tn  the  first  of  these  cases  the  court  went  very 
near  to  holding  in  accordance  with  Mr.  Moak's  statement.  The 
proposition  was  to  read  from  Youatt's  work  on  "Veterinary  Sur- 
gery."  The  reading  was  forbidden.  The  court  on  appeal  said  : 
"It  is  not  to  be  denied  but  that  a  pertinent  quotation  or  extract 
from  a  work  on  science  or  art,  as  from  a  classical,  historical,  or 
other  publication  may  by  way  of  argument  or  illustration,  be  not 
only  admissible,  but  sometimes  highly  proper.  And  it  would 
seem  to  make  no  difference  whether  it  was  repeated  by  counsel 
from  recollection  or  read  from  a  book.  It  would  be  an  abuse  of 
this  privilege  however,  to  make  it  the  pretense  of  getting  im- 
proper matter  before  the  jury  as  evidence  in  the  cause."  This 
essay  is  a  fine  specimen  of  inductive  reasoning  and  will  well  pay 
perusal.  Mr.  Moak  admirably  formulates  the  existing  conditions 
under  which  scientific  books  may  be  read  in  evidence.  "While 
there  can  be  no  hostility  to  the  conclusions  that  he  reaches  there 
well  may  be  a  want  of  sympathy  with  an  exclusionary  rule  that 
shuts  the  averments  of  modern  science  from  the  court  room  under 


SCIENTIFIC    BOOKS    IN    EVIDENCE.  149 

any  pretext  whatever.  Law  itself  is  a  science  and  in  a  state  of 
gestation  at  that,  and  yet  a  law  review  of  any  description  is  ad- 
missible before  either  court  or  jury.  Why  should  conclusions  of 
other  sciences  be  ignored  % 

§99.  Exception  Noted.— Mr.  Abbott  in  his  Trial  Brief,  §459, 
says :  "Statements  made  in  books  of  inductive  science,  such  as 
standard  medical  works,  are  not  competent  evidence  for  any  pur- 
pose. Otherwise  of  books  of  exact  science,  such  as  the  Northamp- 
ton tables,  and  the  like,  if  recognized  by  the  court  as  such,  or 
shown  to  be  such  by  a  qualified  witness.  Citing  Epps  v.  State, 
102  Ind.  539;  State  v.  Baldwin,  30  Kan.  491;  Com.  v.  Wilson,  67 
Mass.  337;  Com.  v.  Sturtivant,  117  Mass.  122,  19  Am.  Rep.  401; 
Com.  v.  Brown,  121  Mass.  69;  People  v.  Millard,  53  Mich.  63; 
People  v.  Goldenson,  76  Cal.  328;  Bales  v.  State,  63  Ala.  30; 
State  v.  West,  1  Houst.  Crim.  Rep.  (Del.)  371;  People  v.  Cheekee, 
61  Cal.  404;  Abbott,  Trial  Ev.  724,  22  Am.  L.  Reg.  N.  S.  105, 
note;  59  Am.  Dec.  185,  note. 

Judge  Redfield  will  be  readily  recognized  as  a  jurist  unencum- 
bered by  visionary  speculations  of  doubtful  value  upon  any  topic. 
In  his  well  known  work  on  the  Law  of  Wills  he  asserts  that  reading 
in  the  hearing  of  a  jury  of  "general  treatises  upon  scientific  and 
professional  subjects  has  been  allowed  by  many  courts,  either  as 
part  of  the  testimony  or  of  the  argument  of  counsel.  But  when 
objected  to,  they  have  not  generally  been  allowed  to  be  read, 
either  to  court  or  jury."  Com.  v.  Wilson,  1  Gray,  337;  Wash- 
hum  v.  Cuddihy,  8  Cray,  430;  Ax/uvo/>t7t  v.  Kittridge,  12  Cush. 
193;  S.  P.  E.  v.  Taylor,  13  Cox,  C.  C.  77. 

Traveling  along  the  same  lines  of  logic  the  supreme  court  of 
Texas  has  held  that  it  is  a  subject  vested  in  the  sound  discretion 
of  the  court,  as  to  the  extent  to  which  scientific  works  may  be 
read  in  evidence.  Dempsey  v.  State,  3  Tex.  App.  42'.>.  See  gen- 
erally, on  this  subject,  Bayles  v.  State,  03  Ala.  30;  State  v.  Hoyt, 
46  Conn.  330;  State  v.  O'Brien,  7  R.  I.  330;  People  v.  W/ieeler, 
60  Cal.  581;  Toe  v.  People,  41)  111.  410. 

There  can  certainly  be  no  objection  to  such  reading  in  argu- 
ment to  the  court.  "I  believe  that  those  judges,  who  carefully 
study  the  medical  writers,  and  pay  the  most  respectful  attention 
to  their  scientific  researches  on  the;  subject,  will  seldom  if  ever 
submit  a  case  to  a  jury  in  such  a  way  as  to  hazard  the  conviction 
of  a  wronged  man."     State  v.  Spencer,  21  N.  J.  L.  1 '.»<;. 

Books  of  exact  science  are  under  a  different  rule  and  arc  gen- 
erally admissible. 


CHAPTER  XVII. 

PHOTOGRAPHY  IN  EVIDENCE. 

§  100.  Value  of  Photography  as  Evidence. 

101.  Tlie  Celebrated  Udder zook  Case  Examined. 

102.  Accuracy  of  Photograph  may  he  Questioned. 

103.  Photographs  of  Documents,  ivhen  Admissible. 

§  100.  Value  of  Photography  as  Evidence. — The  recent  dis- 
coveries of  Dr.  Lippmann  have  imparted  additional  value  to  the 
art  of  photography  as  a  means  of  evidence.  Without  employing 
pigments  or  coloring  matter  of  any  description,  this  discovery  by 
the  use  of  a  sensitized  film,  transparent  and  free  from  all  granula- 
tions or  imperfections,  taken  in  connection  with  an  ingenious 
combination  of  mirrors  of  a  most  perfect  polish  gives  to  the  nega- 
tive when  fixed  the  colors  of  the  object  photographed.  This 
reproduction  of  the  color  is  not  an  artificial  accomplishment,  but 
is  entirely  due  to  natural  phenomena.  For  many  years  the  prob- 
lem in  photography  has  been  directed  toward  this  discovery.  It 
gives  a  permanent  value  to  the  photographic  process  which  it  has 
never  heretofore  possessed,  and  its  direct  influence  upon  eviden- 
tiary law  must  have  immediate  and  permanent  effect  in  that  it 
imparts  an  additional  element  of  certainty  to  a  process  that  is 
already  of  incalculable  advantage  in  both  art  and  science. 

§  101.  The  Celebrated  Udderzook  Case  Examined. — The 
phenomenal  accuracy  of  the  photographic  art  has  become  well 
recognized  as  a  successful  ally  in  the  detection  of  crime.  Few 
cases  of  recent  years  have  been  more  tragic  in  their  incidents  or 
more  startling  in  their  developments  than  that  of  the  famous 
case  of  Udderzook  v.  Com.  YG  Pa.  310.  This  case  was  tried  in 
1S73,  and  the  opinion  of  Chief  Justice  Agnew  is  especially  sig- 
nificant upon  the  subject  now  under  review.  Its  obvious  perti- 
nency will  be  questioned  by  none.  The  portion  contributing  to 
this  discussion  is  in  the  following  language: 

"All  the  bills  of  exception  relate  to  the  use  of  a  photograph  of 
Goss.  This  photograph,  taken  on  the  same  plate  with  a  gentle- 
man named  Langley,  was  clearly  proved  by  him  and  also  by  the 
artist  who  took  it.     Many  objections  were  made  to  the  use  of  the 

150 


PHOTOGRAPHY  IN  EVIDENCE.  151 

photograph,  the  chief  being  to  the  admission  of  it  to  identify 
Wilson  and  Goss.  That  a  portrait  of  a  miniature,  painted  from 
life  and  proved  to  resemble  the  person,  may  be  used  to  identify 
him,  cannot  be  doubted,  though,  like  all  other  evidence  of  iden- 
tity, it  is  open  to  disproof  or  doubt,  and  must  be  determined  by 
the  jury.  There  seems  to  be  no  reason  why  a  photograph,  proved 
to  be  taken  from  life  and  to  resemble  the  person  photographed, 
should  not  fill  the  same  measure  of  evidence.  In  the  case  before 
us,  such  a  photograph  of  the  man  Goss  was  presented  to  a  wit- 
ness who  had  never  seen  him,  so  far  as  he  knew,  but  had  seen  the 
man  known  as  Wilson.  The  purpose  was  to  show  that  Goss  and 
Wilson  were  one  and  the  same  person.  It  is  evident  that  the 
competency  of  the  evidence  in  such  a  case  depends  on  the  relia- 
bility of  the  photograph  as  a  work  of  art,  and  this  must  depend 
upon  the  judicial  cognizance  we  may  take  of  photographs  as  an 
established  means  of  producing  a  correct  likeness.  The  daguer- 
rean  process  was  first  given  to  the  world  in  1S39.  It  was  soon 
followed  by  photography.  It  has  become  a  customary  and  a  com- 
mon mode  of  taking  and  preserving  views,  as  well  as  the  likenesses 
of  persons,  and  has  obtained  universal  assent  to  the  correctness  of 
its  delineations.  We  know  that  its  principles  are  derived  from 
science,  that  the  images  on  the  plate,  made  by  the  rays  of  light 
through  the  camera,  are  dependent  on  the  same  general  laws 
which  produce  the  images  of  outward  forms  upon  the  retinae 
through  the  lenses  of  the  eyes.  The  process  has  become  one  in 
general  use,  so  common  that  we  cannot  refuse  to  take  judicial 
cognizance  of  it  as  a  proper  means  of  producing  correct  like- 
nesses." 

§  102.  Accuracy  of  Photograph  may  he  Questioned. — Pho- 
tographic pictures  are  the  product  of  natural  laws  and  a  scientific 
process.  It  is  true  that  in  the  hands  of  a  bungler,  the  result  may 
not  be  satisfactory.  Much  depends  for  exact  likeness  upon  the 
nice  adjustment  of  machinery,  upon  atmospheric  conditions,  upon 
the  position  of  the  subject,  the  intensity  of  the  light,  the  length 
of  the  sitting.  Most  of  evidence  is  but  the  signs  of  things.  Spoken 
words  and  written  words  are  symbols.  So  the  signs  of  the  portrait 
and  the  photograph,  if  authenticated  by  other  testimony,  may 
give  truthful  representations.  When  shown  by  such  testimony 
to  be  correct  resemblances  of  a  person,  we  see  not  why  they 
may  not  be  shown  to  the  triers  of  the  facts,  not  as  conclusive, 


152  LAW    OF    EVIDENCE    IN    CKIMINAL    CASES. 

but  as  aids  in  determining  the  matter  in  issue,  still  being  open,, 
like  other  proofs  of  identity,  or  similar  matter,  to  rebuttal  or 
doubt. 

Photographs  at  best,  are  but  secondary  evidence — mere  "hear- 
say of  the  sun;"  and  when  the  lack  of  better  evidence  compels  a 
resort  to  them,  the  correctness  of  the  photographic  copies  offered 
must  be  shown  by  proof  that  the  process  of  taking  them  was  con- 
ducted with  skill  and  under  favorable  circumstances,  as  well  as 
that  the  result  has  been  a  fair  resemblance  of  the  object.  Taylor 
Will  Case,  10  Abb.  Pr.  K  S.  300,  318;  Ilynes  v.  McDermott? 
82  X.  Y.  41,  50,  37  Am.  Eep.  538;  Cowley  v.  People,  83  K  T. 
461,  478,  38  Am.  Rep.  464. 

Still  it  must  be  deemed  established  that  photographic  scenes 
are  admissible  in  evidence  as  appropriate  aids  to  a  jury  in  apply- 
ing the  evidence,  whether  it  relates  to  persons,  things  or  places. 
Cozzens  v.  Higgins,  1  Abb.  App.  Dec.  451;  Cowley  v.  People, 
supra;  Durst  v.  Masters,  L.  R.  1  Prob.  Div.  373,  378. 

§  103.  Photographs  of  Documents,  when  Admissible. — 
Photographic  copies  of  public  documents  on  file  in  the  depart- 
ments at  Washington,  which  public  policy  requires  should  not  be 
removed,  are  admissible  in  evidence  when  their  genuineness  is 
authenticated  in  the  usual  way,  by  proof  of  handwriting.  Leath- 
ers v.  Salvor  Wrecking  d'  Transp.  Co.  2  "Woods,  C.  C.  680. 

In  the  case  of  United  states  v.  Messman  (jST.  Y.)  1  Cent.  L.  J» 
121,  which  has  been  on  trial  before  Judge  Blatchford,  an  interest- 
ing point  of  evidence  was  decided.  According  to  the  Herald's 
report  of  the  case,  the  action  was  brought  to  recover  $253.79,  on 
the  following  charge:  Mr.  Messman,  on  the  20th  of  July,  1S64, 
presented  his  pay-rolls  for  the  months  of  January  and  February, 
1864,  and  upon  the  presentation  of  that  paper  received  $253.79. 
It  is  charged  by  the  government  that  on  March  18,  1864,  he  had 
received  his  pay  for  those  months,  and  the  inference  raised  by 
the  government  was  that  he  had  obtained  double  pay.  The  coun- 
sel for  the  defense  set  up  that  one  of  the  pay-rolls  was  a  forgery. 
The  government  had  sent  on  photographic  copies  of  those  pay- 
roll.- purporting  to  have  been  signed  by  Mr.  Messman.  The 
United  States  assistant  district  attorney  offered  to  put  those 
photographic  copies  in  evidence,  but  Judge  Blatchford  declined 
to  accede  to  the  offer,  saying  that  as  the  defense  was  that  one  of 
these  pay-rolls  was  a  forgery,  counsel  for  the  government 'must 


PHOTOGRAPHY  IN  EVIDENCE.  153 

put  in  the  originals.  The  counsel  replied  that  the  court  of  com- 
mon  pleas,  in  a  case  of  this  kind,  had  decided  that  where  it  was 
set  up  that  a  paper  was  forgery,  a  photographic  copy  of  it  could 
be  received  in  evidence.  Judge  Blatchford:  "I  am  not  bound 
by  the  decision  of  the  court  of  common  pleas,  and  I  shall  not  con- 
cur in  its  decision.  To  admit  in  evidence  a  photographic  copy  of 
a  pay-roll  would  be  acting  contrary  to  well  established  rules  of 
evidence — in  fact,  it  would  be  monstrous." 

"With  the  consent  of  defendant,  a  photograph  representing  the 
place  where  the  homicide  was  committed,  was  put  in  evidence, 
W,  a  witness  for  the  prosecution,  who  was  present  when  the 
photograph  was  taken  and  who  had  seen  part  of  the  affair  from 
a  window  near  by,  placed  three  persons  in  the  highway  to  repre- 
sent the  positions,  which,  according  to  his  recollection  the  deceased, 
the  defendant  and  another  person  present  at  the  homicide  occu- 
pied. W's  testimony  as  to  that  fact  was  received  under  objection 
and  exception,  and  it  was  held  to  be  no  error.  People  v.  Jack- 
son,  111  K  Y.  362. 

Where  the  party  introducing  a  photograph  in  evidence  verifies 
the  process  by  which  it  was  taken  by  showing  that  the  result 
obtained  fairly  resembles  the  object  photographed,  the  picture 
becomes  competent  evidence  in  the  case,  provided  there  is  proper 
occasion  for  the  introduction  of  any  view  of  the  person  or  prem- 
ises and  the  modern  cases  generally  support  this  view,  nor  are  the 
cases  adverse  to  these  views.  Ruloff  v.  People,.  45  N.  Y.  213- 
Udderzook  v.  Com.  76  Pa.  310;  Cowley  v.  People,  83  N".  Y.465, 

38  Am.  Rep.  464. 

And  in  another  case,  when  the  genuine  signature  and  the  dis- 
puted signature  were  both  brought  into  court,  magnified  photo- 
graphic copies  of  each,  together  with  the  originals,  were  submit- 
ted to  the  inspection  of  the  jury,  and  it  was  held  not  to  have  been 
error.  Marcy  v.  Barnes,  10  Gray,  162;  Cozzens  v.  Higgins,  1 
Abb.  App.  Dec.  451;  Church  v.  Milwaukee,  31  "Wis.  512;  Hollen- 
beck  v.  Rowley,  8  Allen,  173;  Com.  v.  Coe,  115  Mass.  481;  Walh  r 
\.  Curtis,  116  Mass.  98;  Ruloff  v.  People,  supra;  Cowley  v. 
People,  supra;  Robinson  v.  Mandell,  3  Cliff.  L69;  Taylor 
Will  Case,  10  Abb.  Pr.  K  S.  300;  Tome  v.  Parkersburg  R.  Co. 

39  Md.  36,  17  Am.  Rep.  510.  Sec  Daly  v.  Maguire,  6  Blatchf. 
137;  Re  Foster's  Will,  31  Mich.  21;  Eborn  v.  Zimpelman,  17 
Tex.  503,   26   Am.  Rep.  315;    R<    Stephens,   L.  R.  9  C.  P.  L87; 


154  LAW    OF    EVIDENCE    IN    CRIMINAL    CASES. 

leathers  v.  Salvor  Wrecking  &  Tramp.  Co.  2  Woods,  C.  C.  682 
JLuco  v.  United  States,  64  U.  S.  23  How.  515,  16  L.  ed.  515 
Ri  ddin  v.  Gates,  52  Iowa,  210;  Ordway  v.  Haynes,  50  N".  H.  159 
Eynes  v.  McDermott,  82  K  Y.  41,  37  Am.  Eep.  538;  Durst  v. 
Masters,  L.  E.  1  Prob.  Div.  373. 

The  general  rule  is  without  contradiction  that  where  the  pho- 
tograph is  shown  to  be  a  faithful  representation  of  whatever  it 
purports  to  reproduce  it  is  admissible,  as  an  appropriate  aid  to  a 
jury  in  applying  the  evidence;  and  this  is  equally  true  whether 
it  relates  to  persons,  things  or  places. 

For  further  exposition  of  this  subject  see  2  Rice,  Civil  Evidence, 
■hip.  lii.  p.  1163,  el  seq_. 


CHAPTER  XYIII. 

ORDER  OF  PROOF. 

§  104.  Order  of  Proof  Largely  Discretionary. 

105.  General  Rule  as  to  the  Prosecution. 

106.  Usual  Order  of  Proof  in  Criminal  Cases. 

107.  Abuse  of  Discretion  as  Subject  of  Review. 

108.  Rule  as  to  New  Evidence. 

109.  Pertinent  Evidence  may  be  Received  at  any  Time. 

110.  Views  of  Judge  Rosevelt. 

111.  Conditional  Reception  of  Evidence  on  Promise  to  Show  Rele- 

vancy. 

112.  Continuance  Granted  when. 

§  104.  Order  of  Proof  Largely  Discretionary.— In  the  trial 
of  both  civil  and  criminal  causes,  the  order  in  which  the  testimony 
shall  be  admitted  is  one  of  practice  rather  than  of  strict  right,  and 
may,  in  the  discretion  of  the  court,  be  varied  to  meet  the  exigen- 
cies of  a  given  case,  without  error  being  predicable  thereon,  unless 
it  is  manifest  that  the  variance  has  operated  to  surprise,  or  in 
some  way  work  a  legal  disadvantage  to  the  excepting  party.  1 
Archb.  Crim.  Pr.  &  PI.  576;  Pingry  v.  Washhwrn,  1  Aik.  (Vt.) 
264;  Clayes  v.  Ferris,  10  Vt.  112;  Goss  v.  Turner,  21  Yt.  437;  1 
Bishop,  Crim.  Proc.  §  966. 

§  105.  General  Rule  as  to  the  Prosecution.— The  courts 
in  the  trial  of  criminal  causes  have  generally,  but  not  universally 
required  the  prosecution  to  put  in  its  whole  case  in  the  opening, 
and  have  confined  it  in  the  close  to  testimony  which  tended  to 
rebut  the  testimony  of  the  respondent.  We  apprehend  that  this 
practice,  so  far  as  it  varies  in  this  respect  from  that  which  obtains 
in  civil  cases,  has  been  adopted  rather  out  of  tenderness  to  the  re- 
spondent, and  that  before  entering  on  his  defense  he  might  be 
fully  apprised  of  the  case  which  he  had  to  meet,  than  because  of 
right  he  could  demand  it.  But  in  no  state,  so  far  as  we  are  aware, 
has  it  ever  been  pushed  to  the  extreme  of  rejecting  in  the  clo.se, 
testimony  which  legitimately  tended  to  weaken  the  effect  of  the 
testimony  adduced  by  the  respondent  because  it  also  tended  to 
strengthen  and  confirm  the  testimony  introduced  in  the  opening 

155 


156  LAW  OF  EVIDENCE  IN  CRIMINAL  CASES. 

by  the  prosecution.  Pmgry  v.  Washburn,  1  Aik.  (Vt.)  264; 
Clayesv.  Ferris,  10  Vt.  112;  Goss  v.  Turner,  21  Vt.  437;  1 
Saunders,  PL  &  Ev.  1100;  Stephens,  K  P.  1802;  Koscoe,  Crim. 
Ev.  79;  1  Stark.  Ev.  151,  note  k;  Dave  v.  State,  22  Ala.  23;  Kalle 
v.  People,  1  Park.  Crim.  Rep.  592;  Sa/rtorious  v.  State,  21  Miss. 
602;  Mary  v.  Sifote,  5  Mo.  71;  2  Phil.  Ev.  17;  2  Russell,  Crimes,. 
588;  Bees  v.  xWM,  2  Stark.  20;  (Jrw  v.  £k7o,  1  Mood.  &  M. 
85;  XW,  v.  XY/'A/,  /ww,  49  Vt.  202,  24  Am.  Rep.  124;  State  v. 
Mam,  31  Conn.  572;  1  Best,  Crim.  Proc  §  966. 

§  106.  Usual  Order  of  Proof  in  Criminal  Cases. — The 
jury  having  been  impaneled  and  sworn,  the  trial  must  proceed  in 
the  following  order : 

1.  The  district  attorney,  or  other  counsel  for  the  people,  must 
open  the  case,  and  offer  the  evidence  in  support  of  the  indictment; 

2.  The  defendant  or  his  counsel  may  then  open  his  defense,  and 
offer  his  evidence  in  support  thereof; 

3.  The  parties  may  then,  respectively,  offer  rebutting  testimony, 
but  the  court,  for  good  reason,  in  furtherance  of  justice,  may  per- 
mit them  to  offer  evidence  upon  their  original  case; 

4.  When  the  evidence  is  concluded,  unless  the  case  is  submitted 
to  the  jury  on  either  side,  or  on  both  sides,  without  argument, 
the  defendant  or  his  counsel  must  commence,  and  the  counsel  for 
the  people  conclude  the  argument  to  the  jury; 

5.  The  court  must  then  charge  the  jury. 

Generally  in  criminal  prosecutions  it  may  be  said  that  the  order 
in  which  the  proof  is  presented  to  the  consideration  of  the  jury  is 
in  no  sense  arbitrary  and  the  variant  circumstances  of  each  par- 
ticular case  require  more  or  less  latitude  in  their  application. 
/'■  r/,  v.  Wilson,  55  Mich.  500.  See  Spies  v.  People,  122  111.  1,. 
9  Crim.  L.  Mag.  829,  3  Am.  St.  Rep.  320,  6  Am.  Crim.  Rep.  570. 

The  Michigan  supreme  court  has  repeatedly  held,  that  the  ad- 
mission of  evidence  out  of  strict  order  is  in  the  discretion  of  the 
court.  Detroit  &  M.  R.  Co.  v.  Van  Steinburg,  17  Mich.  99; 
Danielson  v.  Dyckman,  26  Mich.  169;  Somerville  v.  Richards, 
37  Mich.  299;  Brown  v.  Marshall,  47  Mich.  576,  41  Am.  Rep. 
7i'v:  Peopli.  v.  Wilson,  55  Mich.  506.  See  also  State  v.  Daubert, 
42  Mo.  242;  Stat<  v.  Lmney,  :»iJ  Mo.  40;  State  v.  Beuchler,  103 
Mo.  203,  as  expository  of  the  Missouri  rule. 

The  foregoing  text  renders  any  further  comment  unnecessary 
a.-  to  the  arbitrary  control  accorded  the  presiding  judge  in  matters 


OKDEli    OF    PBOOF.  157 

relating  to  the  order  of  proof.  The  United  States  circuit  court 
has  held  that  it  is  within  the  discretion  of  the  trial  court  to  ffrant 
an  adjournment  for  the  purpose  of  allowing  further  testimony  to 
be  introduced;  and  this,  after  one  side  has  rested  its  case.  JJn  ited 
States  v.  Woelke,  17  Blatchf.  555.  See  also  State  v.  Manuel,  64 
K  C.  001;  Winn  v.  State,  43  Ark.  151;  Peopk  v.  Rector,  19 
Wend.  5*;'.';  State  v.  Harris,  03  X.  C.  1.  The  discretion  however, 
that  is  reposed  in  the  presiding  judge,  if  palpably  abused  may  be 
made  the  subject  of  inquiry  in  the  appellate  court,  and  when 
clearly  prejudicial  to  the  accused  or  granted  with  reckless  im- 
providence, will  constitute  reversible  error.  See  Meyer  y.  Culr 
len,  54  X.  Y.  392. 

Even  after  the  testimony  in  a  case  has  closed,  it  is  discretionary 
with  the  court  whether  to  open  the  case  or  not,  to  receive  addi- 
tional evidence,  and  the  decision  is  not  reviewable.  Caldwell  v. 
New  Jersey  S.  B.  Co.  47  N.  Y.  282. 

§  107.  Abuse  of  Discretion  as  Subject  of  Review. — An 
abuse  of  judicial  discretion  has  always  been,  and  always  ought  to 
be,  the  subject  of  review  in  some  form. 

An  abuse  of  discretion,  in  a  legal  sense,  does  not  by  any  means 
imply  that  the  judge  committing  it  was  actuated  by  an  improper 
motive.  It  is  quite  likely  to  happen  in  the  hurry  of  a  trial  at 
circuit;  and  without  careful  consideration  a  plain  error  of  lawmav 
be  committed,  resulting  to  the  prejudice  of  a  party,  which  the 
judge  committing  the  error  would,  upon  further  reflection,  be 
most  happy  to  correct  if  he  could  have  the  opportunity.  In  such 
case  there  is  no  doubt  but  that  an  appellate  court  will  do  justice. 
Meyer  v.  ('"Urn.  54  X.  Y.  392. 

§  108.  Rule  as  to  New  Evidence.— It  is  entirely  within  the 
discretion  of  the  trial  court  to  permit  a  party  to  introduce  new 
evidence  to  maintain  the  issue,  or  to  re-examine  a  witness  on  his 
part  as  to  transactions  previously  testitied  to;  and  this  is  true 
although  the  evidence  is  not  strictly  rebutting.  Marshall  v.  Da- 
vies,  78  X.  Y.  414;  Huntsman  v.  Nichols,  110  Mass.  521;  Gaines 
v.  Com.  50  Pa.  319;  Dally  v.  Grimes,  27  Md.  440;  Day  v. 
Moore,  13  Gray,  522;  L)<>~i>  r  v.  Jerman,  30  Mo.  210;  Walker  v. 
Walker,  14  Ga.  242. 

§  109.  Pertinent  Evidence  may  be  Received  at  any  Time. — 
In  this  connection  it  must  lie  borne  in  mind,  that  the  order  of 
proof  and,  indeed,  the  whole  conduct  of  the  trial  as  relate-  to  the 


158  LAW   OF    EVIDENCE   IN    CRIMINAL   CASES. 

admission  of  evidence  is  largely  within  the  discretion  of  the  trial 
court.  This  we  have  seen,  and  when  it  is  further  considered  that 
one  of  the  most  elementary  principles  of  practice  that  can  be 
stated  is  to  the  effect  that  the  exercise  of  a  mere  discretion,  upon 
the  part  of  the  presiding  judge,  is  never  a  fit  subject  for  com- 
ment or  review,  unless  there  is  palpable  evidence  of  gross  abuse,. 
it  becomes  apparent  that  material  evidence  is  always  in  order  at 
any  time  before  the  conclusion  of  the  arguments,  provided  the 
right  to  its  admission  is  sanctioned  by  the  court.  Mr.  Justice 
Lumpkin  expressed  these  sentiments  in  more  appropriate  lan- 
guage in  delivering  the  decision  in  an  early  Georgia  case:  "  I  must 
say  that  so  much  adverse  am  I  to  withholding  testimony,  that  I 
can  hardly  conceive  of  a  case  so  gross  and  palpable  that  I  should 
feel  constrained  to  control  the  discretion  of  the  circuit  judge  from 
receiving  at  any  time  additional  affirmatory,  cumulative  or  cor- 
roborative evidence  of  facts  previously  proved,  or  which  tends  to 
strengthen  and  add  force  or  probability  to  such  evidence."  Wal- 
ker*. Walker,  14  Ga.  212. 

§  110.  Views  Of  Judge  R-OSevelt. — Judge  Eosevelt,in  a  criminal 
ease  decided  by  the  New  York  general  term  in  1859,  entertained 
similar  views  with  the  full  concurrence  of  his  associate  judges, 
Sutherland  and  Lott.  From  a  careful  review  of  that  case  it 
appears,  that  in  criminal  as  well  as  in  civil  cases,  it  is  within  the 
discretion  of  the  court  to  receive  further  evidence  on  the  part  of 
the  prosecution  after  the  summing  up  has  been  commenced. 
Ordinarily,  the  prosecution  must  introduce  all  the  evidence  in 
support  of  the  indictment,  before  resting.  A  prosecuting  attorney 
may  supply  an  omission,  as  matter  of  right;  but  this  implies  that 
he  may  do  so  as  matter  of  favor;  in  other  words,  that  it  is  discre- 
tionary with  the  judge,  in  view  of  all  the  circumstances,  to  grant 
the  permission  or  to  refuse  it;  and  that  no  appeal,  in  such  case,. 
lies  from  his  decision.     Kalle  v.  People,  4  Park.  Crim.  Rep.  591. 

These  positions  are  sustained  by  a  formidable  array  of  authority. 
See  Com.  v.  Ricketson,  5  Met.  412;  Taylor  v.  Shemwell,  4  B. 
Mon.  575;  Fleet  v.  Hollenkemp,  13  B.  Mon.  219;  Hess  v.  Wilcox, 
58  Iowa,  380;  State  v.  Rose,  33  La.  Ann.  932;  Tierney  v.  Spiva, 
T<;  -Mo.  279;  State  v.  Clyhurn,  16  S.  C.  375;  Buggies  v.  Coffin,^ 
Me.  46S;  Breedlove  v.  Bundy,  96  Ind.  319;  George  v.  Pilchery 
28  Grratt.  299;  Larman  v.  Iluey,  13  B.  Mon.  436;  Caldwell  v. 
New  Jersey  S.  B.  Co.  47  K  Y.  282;  McDowell  v.  Crawford,  11 


ORDER   OF   PROOF.  1591 

Gratt.  377;  Williams  v.  Hayes,  20  N.  Y.  58;  Eggspieller  v. 
Knockles,  58  Iowa,  649;  Darland  v.  Rosencrans,  56  Iowa,  122; 
McKinney  v.  Jones,  55  Wis.  39;  State  v.  Porter,  26  Mo.  201;. 
State  v.  Coleman,  27  La.  Ann.  691;  Johnston  v.  Mason,  27  Mo. 
511;  CWA  v.  Charlotte,  C.  &  A.  R.  Co.  22  S.  C.  557;  Jackson 
v.  Tallmadge,  4  Cow.  150;  Lewis  v.  Ryder,  13  Abb.  Pr.  1;. 
Alexander  v.  Byron,  2  Johns.  Cas.  31S;  /S'tecy  v.  Graham,  3 
Duer.  414;  Burger  v.  117^'fe,  2  Bosw.  92;  Anthony  v.  Smith,  4 
Bosw.  503;  Speyer  v.  Stern,  2  Sweeny,  516;  Williams  v.  Hayes, 
20  X.  Y.  58;  Kellogg  v.  Kellogg,  6  Barb.  116;  Barrett  v.  CW^cr, 
3  Lans.  6S;  Peqpfe  v.  ift?cfcw,  19  Wend.  569. 

In  the  case  last  cited,  it  was  said :  "  The  refusal  to  recall  a, 
witness  to  restate  his  testimony,  after  a  cause  has  been  summed 
up  and  the  jury  charged,  is  a  matter  of  discretion  appertaining  to 
the  court  before  whom  the  trial  is  had;  with  the  exercise  of 
which  a  court  of  review  will  not  interfere." 

§  111.  Constitutional  Reception  of  Evidence  on  Promise 
to  Show  Relevancy. — That  a  court  may  base  its  action  upon  the 
avowals  and  declared  purposes  of  counsel  is  shown  by  Dunn  v. 
People,  29  N.  Y.  523.  It  would  too  much  hamper  the  trial  courts 
in  their  proceedings,  if  they  were  much  restricted  in  the  exercise 
of  a  discretion  in  the  order  in  which  proof  should  be  received. 
There  must  be  a  discretion  vested  in  them,  in  such  case,  for  the 
convenience  and  dispatch  of  business,  and  often  for  a  proper 
understanding  and  appreciation  of  the  testimony.  McCarney  v. 
People,  83  K  Y.  408,  415,  38  Am.  Eep.  456. 

A  well  considered  case  in  Michigan  holds  directly  contrary  to 
the  Xew  York  rule  and  the  practice  generally  regarding  the  con- 
ditional reception  of  evidence  must  be  regarded  as  involved  in 
more  or  less  contradiction.  People  r.  Millard,  53  Mich.  63;  Zell 
v.  Com.  94  Pa.  558,  2  Crim.  L.  Mag.  22. 

§  112.  Continuance  Granted  when. — Continuances  ought 
always  to  be  granted  when,  from  the  showing,  justice  requires  it 
to  be  done,  and  to  enable  a  defendant  to  procure  all  legal  and 
competent  evidence  necessary  for  the  fair  presentation  of  his  case, 
if  he  had  used  due  diligence  to  obtain  the  same.  Technical  objec- 
tions should  not  ordinarily  prevent  the  granting  of  the  motion  for 
continuance,  if  it  is  necessary  to  the  proper  presentation  of  the 
defendant's  case.  But  continuance  will  not  be  granted  unless  it 
is  shown  that  there  is  some  necessity  for  the  production  of  the 


160  LAW  OF    EVIDENCE    IN    CRIMINAL    CASES. 

proposed  testimony.  Hence,  in  affidavits  for  a  continuance,  it  is 
the  uniform  practice  for  the  party  applying  for  the  continuance, 
to  state  that  he  has  no  other  witness  by  whom  he  can  establish 
the  same  fact.  Continuances  will  not  be  allowed  to  enable  the 
party  to  produce  evidence  that  is  merely  cumulative,  unless  there 
is  some  necessity  shown  therefor, — such  as,  that  there  will  be  a  con- 
flict in  the  evidence  in  reference  to  the  particular  matter  in  regard 
t<  i  which  the  absent  witness  is  expected  to  testify.  Eighmy  v. 
People,  70  1ST.  Y.  546;  Roberts  v.  People,  9  Colo.  458;  Dunn  v. 
People,  109  111.  635;  Bagwell  v.  State,  56  Ga.  406;  State  v. 
Dakin,  52  Iowa,  305;  Beavers  v.  State,  58  Ind.  530;  Walker  v. 
State,  13  Tex.  App.  618;  State  v.  Lewis,  T4  Mo.  222;  Shook  v. 
Thomas,  21  111.  87. 

The  evidence  usually  relied  upon  to  secure  a  continuance  in  a 
criminal  case  is  brought  to  the  attention  of  the  trial  court  through 
the  medium  of  affidavits,  or  upon  such  direct  statements  in  open 
court  by  reputable  counsel  as  will  entitle  them  to  judicial  consid- 
eration. In  cases  of  felony  the  absence  of  the  accused  is  a 
sufficient  cause  for  a  continuance.  Brown  v.  State,  24  Ark.  620; 
State  v.  Cross,  27  Mo.  332;  People  v.  Perkins,  1  Wend.  91; 
Graham  v.  State,  40  Ala.  659;  People  v.  Koehler,  5  Cal.  72; 
Jackson  v.  Com.  19  Gratt.  656;  State  v.  Doohj,  64  Mo.  146; 
Sm  >  d  v.  State,  5  Ark.  431;  State  v.  Bertin,  24  La.  Ann.  46;  K 
Y.  Code  Crim.  Proc.  §  465. 

Public  indignation  against  the  accused,  owing  to  the  enormity 
of  the  alleged  offense,  when  satisfactorily  shown  to  the  court 
should  result  in  a  continuance.  State  v.  Wells,  61  Iowa,  629; 
Bishop  v.  State,  9  Ga.  121;  Cox  v.  State,  64  Ga.  374;  Beavers  v. 
State,  58  Ind.  530.  Sudden  illness  of  the  attorney  for  the  accused, 
and  possibly  unavoidable  absence  may  be  shown  in  sur^jbort  of  a 
motion  for  continuance.  Bagwell  v.  State,  56  Ga.  406.  And,  in 
most  jurisdictions,  insufficient  time  to  properly  prepare  the  defense 
may  be  urged  with  propriety.     State  v.  Leiois,  74  Mo.  222. 

By  statutory  enactment  in  Kew  York,  the  defendant  after  a 
plea  of  not  guilty  is  entitled  to  a  continuance  of  at  least  two  days 
to  prepare  for  his  trial  if  he  require  it.  The  trial  itself  however, 
may  be  had  in  absence  of  the  accused  if  he  appear  by  counsel, 
bur,  if  the  indictment  be  for  a  felony,  the  defendant  must  be  per- 
sonally present.     K  Y.  Code  Crim.  Proc.  §  356,  357. 

It  is  the  constitutional  privilege  of  one  accused  of  crime  to  have 


OKDEK   OF   PKOOF.  161 

the  assistance  of  counsel  and  this  privilege  carries  with  it  the  co- 
ordinate right  to  a  personal  interview.  See  U.  S.  Const.  6th 
Amendment;  Cooley,  Const.  Lim.  331.  To  give  life  and  effect 
to  this  constitutional  provision,  and  to  make  the  presence  of 
counsel  upon  the  trial  a  valuable  right  it  must  include  a  private 
interview  with  his  counsel  prior  to  the  trial.  "Westbrook,  J.,  in 
People  v.  fiisley,  1  N.  Y.  Crim.  Eep.  492. 

So  "  every  person  who  is  indicted  of  treason  or  other  capital 
crime,  shall  be  allowed  to  make  his  full  defense  by  counsel  learned 
in  the  law;  and  the  court  before  which  he  is  tried  or  some  judge 
thereof  shall  immediately,  upon  his  request,  assign  to  him  such 
•counsel,  not  exceeding  two,  as  he  may  desire,  and  they  shall  have 
free  access  to  him  at  all  seasonable  hours."  U.  S.  Rev.  Stat. 
§  1031;  N.  Y.  Code  Crim.  Proc.  §  108;  People  v.  Willett,  3  K  Y. 
Crim.  Rep.  51,  1  How.  Pr.  K  S.  197. 

Any  failure  to  accord  this  right  may  be  shown  by  affidavit,  and 
where  it  satisfactorily  appears  that  further  time  should  be  allowed 
to  perfect  the  defense,  a  continuance  should  be  granted. 

Ms  parte  affidavits  are  evidence  in  judicial  proceedings  only  as 
6ome  law  has  declared  them  to  be  evidence,  and  they  are  not  evi- 
dence of  any  facts  stated  in  them  unless  some  law  makes  them 
such.  Still  they  may  be  effectively  employed  in  an  application 
for  a  continuance  as  a  basis  for  the  motion. 
11 


CHAPTER  XIX. 

EVIDENCE  NECESSARY  TO  SECURE  A  CONTINUANCE. 

§  113.  Rule  the  Same  as  in  Civil  Cases. 

114.  Right  not  Affected  by  Admissions  of  Opposite  Party. 

115.  What  Evidence  is  Necessary  to  Secure. 

116.  What  Motion  Papers  should  Prove. 

§  113.  Rule  the  Same  as  in  Civil  Cases. — "The  rule  govern- 
ing applications  for  a  continuance,"  said  Sutherland,  J.,  in  People 
v.  Vermilyea,  7  Cow.  369,  "is  substantially  the  same  in  civil  and 
criminal  cases;  though  in  the  latter  the  authorities  all  agree  that  the 
matter  is  to  be  scanned  more  closely,  on  account  of  the  superior 
temptation  to  delay  and  escape  the  sentence  of  the  law.  .  .  .• 
In  cases  where  the  common  affidavit  applies,  the  court  has  no  dis- 
cretion. The  postponement  is  a  matter  of  right,  resting  on  what 
has  become  a  principle  of  the  common  law.  But  where  there  has 
been  laches,  or  there  is  reason  to  suspect  that  the  object  is  delay, 
the  judge  at  the  circuit  may  then  take  into  consideration  all  the 
circumstances,  and  grant  or  delay  the  application  at  his  pleasure. 
"Where  the  subject  takes  this  turn,  the  application  ceases  to  be  a 
matter  of  right,  and  rests  in  discretion."  This  doctrine  seems  to 
be  borne  out  by  the  authorities.  2  Phil.  Ev.  Cowen  &  Hill's 
Notes,  353. 

§  114.  Right  not  Affected  by  Admissions  of  Opposite  Party. 
— Shall  a  party  who  has  made  out  good  grounds  for  a  continu- 
ance, on  account  of  the  absence  of  witnesses,  be  ruled  to  trial 
upon  the  admission  of  his  adversary,  that  his  witnesses  who  are 
absent,  if  present  would  swear  to  the  facts  which  he  states  he  ex- 
pects to  prove  by  them;  or  shall  he  be  required  to  admit  the  fact 
proposed  to  be  proven  by  them? 

The  common  law  rule  of  confronting  the  jurors  with  the  wit- 
nesses in  a  public,  oral  examination,  has  ever  been  regarded  by  the 
wisest  jurists  as  a  most  invaluable  rule  in  the  ascertainment  of 
truth.  By  such  an  examination,  a  party  has  not  only  the  benefit 
of  the  naked  fact  detailed,  but  also  the  benefit  of  the  deportment, 
the  manner,  the  physiognomy,  the  impression,  detail,  and  intelli- 
gent reasons  given  by  his  witnesses,  which  are  calculated  to  force 

102 


EVIDENCE   NECESSARY    TO    SECURE   A    CONTINUANCE.  163 

conviction  upon  the  triers,  and  greatly  outweigh  the  same  num- 
ber of  witnesses  on  the  other  side.  Of  all  these  he  would  be 
deprived,  if  compelled  to  go  to  trial  upon  the  naked  admission 
that  his  witnesses  would  swear  to  the  facts  which  he  proposes  to 
prove  by  them.  Such  admission,  if  not  forgotten,  would  make 
but  little  impression,  amid  a  consistent  and  rational  detail  of  a 
similar  number  of  witnesses,  deposing,  orally,  to  facts  of  a  coun- 
teracting character. 

His  right  to  bring  his  witnesses  before  the  jury  is  a  legal  right, 
and  which  may  be  of  essential  advantage  to  him,  especially  in  the 
establishment  of  controverted  facts,  and  of  which  he  ought  not  to 
be  deprived.  If,  therefore,  entitled  to  a  continuance  in  such  a 
case,  he  ought  not  to  be  deprived  of  it  by  any  admission  short  of 
the  admission  of  the  fact  intended  to  be  proved  by  his  absent  wit- 
nesses. Smith  v.  Creason,  5  Dana,  298,  30  Am.  Dec.  688;  Do- 
mi/nges  v.  State,  7  Smedes  &  M.  475,  45  Am.  Dec.  315;  Goodman 
v.  State,  1  Meigs,  195. 

Where  the  evidence  discloses  sufficient  ground  for  a  continu- 
ance, the  prosecution  cannot  frustrate  the  application  by  stipulat- 
ing to  admit  the  evidence  sought  to  be  adduced.  .  By  constitu- 
tional guarantee  in  every  state  in  the  Union  the  prisoner  has  a 
right  to  the  personal  presence  of  witnesses  in  his  behalf.  State  v. 
Berkley,  92  Mo.  41;  State  v.  Parker,  13  Lea,  226. 

Much  controversy  has  surged  about  this  proposition  but  the  dis. 
senting  opinion  of  Mr.  Justice  Sherwood  in  the  recent  case  of 
State  v.  Jennings,  81  Mo.  85,  will  go  very  far  toward  placing  the 
the  question  beyond  cavil  or  demur. 

In  several  jurisdictions  this  question  is  determined  by  statutory 
enactment  and  is  granted  once  as  matter  of  right.  If  allowed  as 
to  one  joint  defendant  the  others  are  entitled  to  the  same  privi- 
lege. Stephenson  v.  State,  5  Tex.  App.  79;  State  v.  Frasi  r,  '2 
Bay,  96.  But  see  State  v.  McComb,  IS  Iowa,  43;  Thompson  v. 
State,  9  Tex.  App.  301.  As  to  the  light  to  a  prosecution  by  con- 
tinuance, see  People  v.  Fuller,  2  Park.  Crim.  Rep.  16. 

"Where  the  defendant  in  a  criminal  case  reads,  as  the  evidence 
of  an  absent  witness,  the  statement  contained  in  the  affidavit  for 
continuance  of  what  the  evidence  of  the  witness  would  be  if  pres- 
ent, the  state  may  contradict  his  testimony  or  impeach  the  witness 
as  if  he  were  present.  And  the  state  may  offer  the  witness  him- 
self to  contradict  such  statement  so  read  in  evidence.  State  v. 
Mann,  83  Mo.  589. 


161  LAW   OF    EVIDENCE    IN   CRIMINAL   CASES. 

Where  a  defendant  in  a  criminal  case,  offers  a  sufficient  affi- 
davit for  continuance,  stating  the  facts  to  which  the  absent  wit- 
nesses are  expected  to  testify,  it  is  error  to  refuse  a  continuance, 
even  though  the  prosecuting  attorney  offers  to  admit,  not  simply 
that  the  witness  would  testify  to  the  facts  stated,  but  also,  the 
truth  of  the  facts  stated;  for  the  defendant  has  the  constitutional 
right,  to  have  the  witnesses  personally  present  at  the  trial.  "Where 
the  circuit  court  refuses  a  continuance  for  the  insufficiency  of  the 
reasons  stated  in  the  affidavit,  the  court  of  errors  would  be 
extremely  cautious  and  circumspect  in  controlling  its  discretion, 
though  they  entertained  a  clear  opinion  that  the  reasons  were  suf- 
ficient.    Goodman  v.  State,  Meigs,  195. 

§  115.  What  Evidence  is  Necessary  to  Secure. — Privilege 
of  a  postponement  is  an  absolute  right  where  either  party  can 
produce  satisfactory  reasons  for  the  request,  and  although  there  is 
abundant  dicta  intimating  that  the  application  to  postpone  is  ad- 
dressed to  the  sound  discretion  of  the  court,  still  the  careful 
analysis  of  the  authorities  will  clearly  establish  the  fact  that  any 
arbitrary  exercise  of  this  discretion  is  discountenanced,  and  where 
the  application  is  improvidently  refused  the  appellate  court  will 
grant  relief. 

Without  attempting  an  extended  tabulation  of  all  the  cases  that 
have  been  deemed  sufficient  ground  for  postponement  the  follow- 
ing may  be  regarded  as  among  the  most  prominent,  and  any  evi- 
dence based  upon  one  of  these  several  grounds  for  a  continuance 
is  considered  pertinent.  (1)  A  disturbed  and  excited  state  of  the 
public  mind  prejudicial  to  the  accused.  (2)  Illness  of  counsel. 
(3)  Absence  of  the  defendant,  in  cases  of  felony.  (1)  Surprise 
at  some  unexpected  development  of  the  case  which  could  not  have 
been  reasonably  anticipated.  (5)  Want  of  adequate  time  in  prep- 
aration of  the  defense.  (6)  Refusal  to  admit  counsel  to  the  jail 
premises  for  the  purpose  of  consultation  with  the  prisoner.  In 
support  of  these  propositions  are  cited  as  illustrative:  Re  Sheriff 
of  New  York,l  AVheeler  Grim.  Cas.  303;  Stewart  v.  State,  58  Ga. 
577;  Brown  v.  State,  21  Ark.  620;  State  v.  Gross,  27  Mo.  332; 
People  v.  Kohler,  5  Cal.  72;  Jackson  v.  Com.  19  Gratt.  65G;  Gra- 
ham v.  State,  10  Ala.  659;  State  v.  Bertin,  21  La.  Ann.  16;  Clark 
v.  State,  1  Humph.  251;  Burley  v.  State,  1  Neb.  385;  Sweeden  v. 
State,  19  Ark.  205;  People  v.  Perkins,  1  Wend.  91;  Andrews  v. 
State,  2  Sneed,  550;  Prine  v.  Com.  18  Pa.  103;  Shapoonmash  v. 


EVIDENCE    NECESSARY    TO    SECURE    A    CONTINUANCE.  165 

United  States,  1  Wash.  Terr.  188;  State  v.  Dooly,  64  Mo.  146; 
State  v.  Allen,  64  Mo.  67;  Dunn  v.  Com.  6  Pa.  384;  Sneed  v. 
State,  5  Pike,  431;  N.  Y.  Code  Crim.  Proc.  §  465. 

When  an  application  for  an  adjournment  is  made  in  good  faith 
and  upon  proper  facts  shown,  aud  not  for  the  purpose  of  delay, 
it  is  error  at  law  to  refuse  same,  and  such  refusal  is  review- 
able. Brooklyn  Oil  Works  v.  Brown,  38  How.  Pr.  451;  Onder- 
donk  v.  Ranlett,  3  Hill,  323;  Ogden  v.  Payne,  5  Cow.  15;  Hooker 
v.  Rogers,  6  Cow.  577;  People  v.  Vermilyea,  7  Cow.  3S3;  Pulver 
v.  Hiserodt,  3  How.  Pr.  49;  2  Tidd.  Pr.  708;  1  Archb.  Crim.  Pr. 
&  PL  210;  1  Chitty,  Crim.  Law,  392;  King  v.  B'Eon,  1  W. 
Bl.  510,  3  Burr.  1513;  Webster  v.  People,  92  K  Y.  422. 

Should  it  appear,  however,  that  the  evidence  sought  is  clearly 
inadmissible,  or  is  cumulative  in  its  character  the  motion  should 
be  denied.  Nelms  v.  State,  58  Miss.  362;  Krebs  v.  State,  8  Tex. 
App.  1;  Varnadoe  v.  State,  67  Ga.  768.  And  so  proof  of  the 
pendency  of  a  civil  action  against  the  accused  or  even  of  another 
indictment  for  the  same  offense  is  insufficient  evidence  upon 
which  to  base  an  order  of  continuance.  Elghmy  v.  People,  79 
N.  Y.  546;  Loeffner  v.  State,  10  Ohio  St.  598. 

§  116.  What  Motion  Papers  Should  Prove.  — To  sus- 
tain the  application  for  a  continuance  the  affidavit  should  show: 
(1)  The  material  nature  of  the  evidence  sought.  (2)  High 
degree  of  probability  that  it  may  be  secured.  (3)  The  exercise 
of  due  diligence  in  the  effort  already  made  to  obtain  it.  Hyde  v. 
State,  16  Tex.  445,  67  Am.  Dec.  632;  Moody  v.  People,  20  111. 
315;  State  v.  Bennett,  52  Iowa,  724;  State  v.  Hagan,  22  Kan. 
490;  Blige  v.  State,  20  Fla.  742;  McBermott  v.  State,  S9Ind.  187; 
People  v.  Francis,  38  Cal.  183;  State  v.  Gray,  14  JSTev.  212,  7 
Crim.  L.  Mag.  84;  People  v.  Vermilyea,  7  Cow.  369;  State  v. 
Files,  3  Brev.  (S.  C.)  304;  1  Tread.  (S.  C.)  234;  Wray  v.  People, 
78  111.  212;  State  v.  Smith,  8  Pdch.  L.  460;  State  v.  Lange,  59 
Mo.  418;  Mackey  v.  Com.  80  Ky.  345,  4  Ky.  L.  Rep.  179;  People 
v.  Ah  Yute,  53  Cal.  613. 

The  case  of  King  v.  D'Eon,  1  W.  Bl.  510  and  3  Burr.  1513,  is 
a  leading  case  on  this  subject,  and  contains  the  principles  above 
formulated  which  have  since  prevailed  in  relation  to  a  continu- 
ance. Lord  Mansfield  says  in  that  case,  "three  things  are  neces- 
sary to  put  off  a  trial:  1.  That  the  witness  is  really  material,  and 
appears  to  the  court  so  to  be.     2.  That  the  party  who  applies  has 


1GG  LAW    OF    EVIDENCE    IN    CRIMINAL   CASES. 

been  guilty  of  no  neglect.  3.  That  the  witness  can  be  had  at  the 
time  to  which  the  trial  is  deferred."  Wilmot,  J.,  said  that  the 
rule  is  the  same  in  criminal  and  civil  cases;  and  Yates,  J.,  said, 
whatever  indulgence  the  law  gives  to  defendant  in  civil  cases,  it 
ought,  a  fortiori,  to  give  in  criminal. 

Where  the  application  for  a  continuance  is  made  in  good  faith 
and  is  based  upon  evidence  of  proper  facts  which  go  to  negative 
the  theory  of  mere  captious  delay  it  is  reversible  error  to  refuse 
it.  Brooklyn  Oil  Works  v.  Brown,  38  How.  Pr.  451;  Ortder- 
donTc  v.  Ranlett,  3  Hill,  323;  Ogden  v.  Payne,  5  Cow.  15;  Pulver 
v.  Eiserodt,  3  How.  Pr.  49;  2  Tidd,  Pr.  708;  1  Archb.  Grim.  Pr. 
&  PI.  210;  Chitty,  Crim.  Law,  492;  King  v.  UEon,  1  W.  PI.  510; 
3  Purr.  1513. 

But  if  there  are  suspicious  circumstances  attending  the  appli- 
cation, then  the  court  will  require  the  party  to  be  more  minute  in 
stating  the  circumstances  and  facts  upon  which  the  application 
rests.  This  general  rule  is  found  in  books  of  practice  both  civil 
and  criminal  2  Tidd,  Pr.  70S;  1  Archb.  Crim.  Pr.  &  PI.  210;  1 
Dunl.  580,  587;  1  Chitty,  Crim.  Law,  492. 


CHAPTER  XX. 

VARIANCE,  IDEM  SONANS. 

§  117.   TJie  Term  Variance  Defined. 

118.  Proofs  and  Allegations  must  Correspond. 

119.  General  Rule  of  Criminal  Pleading  Stated. 

120.  Illustrations  of  these  Hides. 

121.  Only  Material  Variance  will  be  Regarded. 

122.  Wlien  Variance  between  Indictment  and  Proof  will  Call 

for  Amendment. 

123.  The  Doctrine  of  Idem  Sonans  Stated. 

124.  Instances  of  Immaterial  Variance  in  Name. 

125.  Extended  Tabulation  of  the  Cases  from  Rapelje's  Criminal 

Procedure. 

§  117.  The  Term  Variance  Defined. — Variance  has  been 
defined  as  a  disagreement  between  the  allegation  and  the  proof 
in  some  matter  which,  in  point  of  law,  is  essential  to  the  charge 
or  claim.  House  v.  Metcalf,  27  Conn.  638;  State  v.  Wadsworth, 
30  Conn.  57;  Reiser  v.  Topping,  72  111.  229. 

§  118.  Proofs  and  Allegations  must  Correspond. — Undoubt- 
edly, the  rule  is  that  the  proofs  must  correspond  with  the  allega- 
tions in  the  declaration,  but  the  requirement  in  that  behalf  is 
fulfilled,  if  the  substance  of  the  declaration  is  proved.  Nash  v. 
Towne,  72  U.  S.  5  Wall.  689,  IS  L.  ed.  527. 

The  North  Carolina  supreme  court  has  decided,  that  where 
there  is  a  variance  between  the  allegation  and  proof  in  a  criminal 
proceeding,  its  effect  is  to  vacate  the  verdict,  but  leaving  the 
prisoner  liable  to  re-trial.     State  v.  Sherill,  82  N.  C.  694. 

Where  it  appears  that  a  party  is  as  well  known  under  his  alias 
name  as  under  his  real  name,  a  variance  in  names  will  be  disre- 
garded. Ehlert  v.  State,  93  Ind.  76;  Hunter  v.  State,  8  Tex. 
App.  75. 

And  it  has  been  held,  that  where  a  statute  of  limitations  imposes 
a  specified  time  within  which  a  criminal  prosecution  must  be 
instituted,  a  variance  as  to  the  time  in  which  the  offense  is  com- 
mitted is  immaterial,  provided  the  time  alleged  in  the  indictment 
and  that  proved  at  the  trial,  are  both  within  the  statutory  limita- 
tions.    State  v.  Bell,  49  Iowa,  440. 

167 


168  LAW   OF    EVIDENCE   IN    CRIMINAL   CASES. 

§  119.  General  Rule  of  Criminal  Pleading  Stated. — It  is  a 

general  rule  of  criminal  pleading  that  material  allegations  must 
be  proved,  and  that  if  an  allegation  need  not  be  proved,  it  is  not 
material.  State  v.  Porter,  38  Ark.  637.  The  proof  must  always 
correspond  with  the  charge  in  the  indictment  ( United  States  v. 
Barton,  6  McLean,  46)  even  though  the  offense  is  set  out  with 
greater  particularity  than  is  required;  nothing  connected  with  the 
offense  can  be  disregarded  as  surplusage.  United  States  v.  Brown, 
3  McLean,  233.  "Where  an  offense  is  susceptible  of  commission 
in  more  than  one  way,  it  must  be  proved  to  have  been  committed 
in  the  particular  way  charged,  and  in  no  other  way.  Kennedy  v. 
State,  9  Tex.  App.  399.  The  precise  offense  charged,  and  no 
other,  must  be  proved.     Rapalje,  Crim.  Proc.  §  107. 

§  120.  Illustrations  of  these  Rules. — A  distinction  obtains 
as  to  those  variances  occasioned  by  the  proof  and  the  context  or 
recitals  of  an  enactment  or  even  of  a  contract.  Variance  under 
such  conditions  must  be  regarded  as  fatal.  Butler  v.  State,  3 
McCord,  L.  383. 

"Where  the  prosecutor  states  the  offense  with  greater  particu- 
larity than  he  is  bound  to  do,  the  proof  must  correspond  with  the 
averments.  That  cannot  be  regarded  as  surplusage,  which  is  con- 
nected with  the  offense.  United  States  v.  Brown,  3  McLean^ 
233. 

Thus,  in  an  indictment  charging  the  defendant  with  having  in 
his  custody  and  possession,  with  intent  to  sell  the  same,  "  one  pint 
of  adulterated  milk,  to  which  milk  water  had  been  added,"  the 
allegation  is  descriptive,  and  is  not  supported  by  proof  that  the 
milk  in  question  was  adulterated  by  adding  water  to  pure  milk. 
Com.  v.  Luseomb,  130  Mass.  42. 

The  rules  of  pleading  are  the  same  in  civil  as  in  criminal  actions. 
In  Jerome  v.  Whitney,  7  Johns.  321,  the  court  held  that  if  the 
plaintiff  in  his  declaration  on  a  note  for  value  received,  instead  of 
stating  generally  that  it  was  given  for  value  received,  sets  forth 
specially  in  what  the  value  received  consisted,  he  is  bound  to 
prove  the  particular  value  according  to  the  averment,  and  the 
general  knowledge  of  value  in  the  note  is  not  sufficient  to  support 
the  declaration.  So  in  United  States  v.  Porter,  3  Day,  283,  it  was- 
held,  that  where  in  an  indictment  for  stopping  the  mail,  the  contract 
of  the  carrier  of  the  mail  with  the  postoffice  department,  was  set 
out,  it  must  be  proved.     And  where  an  indictment  for  burglary 


VARIANCE,     IDEM    SONANS.  1G91 

in  the  house  of  J.  D.  with  intent  to  steal  the  goods  of  J.  "W".  it 
appearing  that  J.  A\r.  had  no  property  there,  it  was  held  material 
to  state  truly  in  whom  the  property  of  the  goods  was. 

In  1  Chitty,  PI.  263,  it  is  said,  That  if  however  the  matter  un- 
necessarily stated  be  wholly  foreign  and  irrelevant  to  the  cause,  SO' 
that  no  allegation  whatever  on  the  subject  was  necessary,  it  will 
be  rejected  as  surplusage.  If  the  prosecutor  choose  to  state  the 
offense  with  greater  particularity  than  is  required  by  the  statute, 
he  will  be  bound  by  the  statement,  and.  must  prove  it  as  laid. 
Bex  v.  Dawli?i,  5  T.  R.  311;  United  States  v.  Brown,  3  Mc- 
Lean, 233. 

§  121.  Only  Material  Variance  will  be  Regarded. — A  vari- 
ance is  not  now  regarded  as  material  unless  it  is  such  as  might 
mislead  the  defense,  or  might  expose  the  accused  to  the  danger  of 
being  put  twice  in  jeopardy  for  the  same  offense.  Abbott,  Trial 
Brief,  §  680. 

This  entire  subject  of  variance  has  received  direct  illumina- 
tion from  a  recent  decision  of  the  New  York  court  of  appeals. 
Mr.  Justice  Earl,  writing  for  affirmance  and  voicing  the  unani- 
mous opinion  of  his  associates  says  :  "  It  is  also  claimed  that  there 
was  a  false  variance  between  the  indictment  and  the  proof,  in 
that  the  indictment  alleges  that  Harris  swore  before  the  fire 
marshall  that  there  were  60,000  cigars  in  the  building  at  the  time 
of  the  fire,  whereas  the  proof  showed  that  he  swore  that  there 
were  65,000.  This  objection  was  in  no  form  made  at  the  trial, 
and  therefore  cannot  avail  here.  If  it  had  been  made,  the  evi- 
dence as  to  that  item  could  have  been  excluded  or  waived,  or  the 
judge  could  have  instructed  the  jury  to  disregard  the  evidence 
and  that  there  would  have  been  still  enough  to  uphold  a  convic- 
tion. The  variance  was  as  to  the  one  of  a  number  of  distinct 
items  as  to  which  Harris  was  charged  with  swearing  falsely,  and 
if  the  jury  had  found  that  he  swore  falsely  as  to  the  other  items,  or 
as  to  anyone  of  them,  a  verdict  of  guilty  would  have  been  proper. 
Where  an  indictment  charges  that  the  prisoner  has  stolen  a  num- 
ber of  articles,  or  has  inflicted  a  number  of  blows,  or  has  obtained 
goods  by  a  number  of  false  pretenses,  or  has  sworn  falsely  in  an 
affidavit  as  to  several  facts,  it  is  not  necessary  to  prove  all  that  is 
charged.  It  is  sufficient  to  prove  enough  to  make  out  the  offensi 
charged.  3  Russell,  Crimes  (4th  London  ed.)  L05;  Reg.v.Jihodes, 
2  Ld.  Raym.  SS6;  3  Starkie,  Ev.  860;  Tomlinson's  Case,  1  I 
Hall  Rec.  125;  Roscoe,  Crim.  Ev.  (6th  Am.  ed.)   763.       .      .      , 


170  LAW    OF    EVIDENCE    IN    CRIMINAL    CASES. 

v 

"  The  strictness  of  the  ancient  rule  as  to  variance  between  the 
proof  and  the  indictment  has  been  much  relaxed  in  modern  times. 
Variances  are  regarded  as  material,  because  they  may  mislead  a 
prisoner  in  making  his  defense,  and  because  they  may  expose  him 
to  the  danger  of  being  again  put  in  jeopardy  for  the  same  offense." 
Harris  y.  People,  64  K  Y.  148. 

§  122.  When  Variance  between  Indictment  and  Proof  will 
Call  for  Amendment. — If  there  be  a  variance  between  the 
indictment  and  the  evidence  brought  forward  to  sustain  it,  the 
•courts,  on  application,  will  amend  the  indictment,  as  in  the  fol- 
lowing instances:  where  the  variance  is  in  the  setting  out  of  any 
matter  in  writing,  or  in  print,  or  in  the  name  of  any  county,  city, 
town,  parish,  etc.,  or  in  the  name  of  the  owner  of  any  property 
which  is  the  subject  of  the  indictment,  or  in  the  name  of  any  per- 
son injured,  or  intended  so  to  be,  by  the  offense  charged,  or  in  the 
name  of  any  person  mentioned  in  the  indictment,  or  in  the  "name 
or  description  of  any  matter  or  thing  whatsoever  therein  named 
or  described,"  or  in  the  ownership  of  property  therein  named  or 
•described. 

But  there  are  some  cases  of  variance  where  an  amendment  is 
not  necessary.  Upon  an  indictment  for  embezzlement,  if  the  evi- 
dence prove  a  larceny,  the  jury  may  acquit  the  prisoner  of  the 
embezzlement  and  find  him  guilty  of  simple  larceny,  upon  an 
indictment  for  obtaining  goods  or  money  under  false  pretenses; 
if  the  evidence  prove  a  larceny,  the  defendant,  notwithstanding, 
may  be  convicted  of  false  pretenses;  upon  an  indictment  for  a 
misdemeanor,  if  the  evidence  prove  a  felony,  the  defendant  shall 
not,  on  that  account,  be  acquitted,  unless  the  court  think  proper 
to  discharge  him  from  that  indictment,  and  order  him  to  be  prose- 
cuted for  the  felony.     Archb.  Crim.  Pr.  &  PI.  124. 

§  123.  The  Doctrine  of  Idem  Sonans  Stated.— There  is  a 
rule  of  growing  importance  by  which  courts,  for  many  years,  have 
evinced,  by  their  decisions,  a  disposition  to  recede  from  the  fading 
adherence  to  common  law  technicalities,  and  hold  rather  to  sub- 
stance than  mere  form.  Modern  decisions  conform  to  the  rule 
that  a  variance,  to  be  material,  must  be  such  as  to  mislead  the 
opposite  party  to  his  prejudice,  and  hence  the  doctrine  of  idem 
sonans  has  been  much  enlarged  by  modern  decisions,  to  conform 
to  the  above  salutary  rule.  The  law  does  not  treat  every  slight 
variance,  if  trivial,  such  as  the  omission  of  a  letter  in  the  name,  as 


VARIANCE,    IDEM    SONANS.  171 

fatal.  The  variance  should  be  a  substantial  and  material  one  to 
be  fatal.  Harris,  Identification,  §  139;  Trimble  v.  State,  4 
Blackf.  435;  Stevens  v.  Stehhins,  4  111.  25. 

Courts  are  not  fastidious  in  enforcing  absolute  precision  in 
regard  to  orthography.  Names  admitting  of  the  same  pronunci- 
ation are  often  made  up  of  very  different  letters.  In  these  cases, 
a  mistake  of  one  mode  of  spelling  for  another  is  unimportant, 
•even  in  an  indictment.  The  public  prosecutor  is  not  bound  to  ascer- 
tain the  particular  letters  used  by  the  accused  in  writing  his  name, 
for  this  might  often  be  impracticable.  But  where  the  orthography 
of  the  indictment  composes  a  name  which  by  the  ordinary  rules 
•of  pronunciation  produces  a  different  sound  from  the  true  one, 
the  mistake  will  be  fatal. 

The  doctrine  of  idem  son  arts  is  too  well  established  to  be  dis- 
regarded. If  the  name  as  laid  in  the  indictment,  and  the  name 
proven  on  the  trial,  were  of  the  same  sound,  then  there  is  not  a 
fatal  variance,  although  the  two  names  may  have  been  spelled 
slightly  different.  Donnel  v.  United  States,  1  Morris  (Iowa)  141, 
•39  Am.  Dec.  457;  Parchman  v.  State,  2  Tex.  App.  228;  Schooler 
v.  Asherst,  1  Litt.  (Ky.)  210;  Barnes  v.  People,  18  111.  52;  Rex 
v.  Tannett,  Russ.  &  R.  351;  Rex  v.  Shakespeare,  10  East,  83; 
Com.  v.  Gillespie,  7  Serg.  &  R.  479;  Swails  v.  State,  7  Blackf. 
324. 

§  124.  Instances  of  Immaterial  Variance  in  Name. — It  is 

held  to  be  an  immaterial  variance  where  the  words  may  be 
sounded  alike,  without  disturbing  the  power  of  the  letters  found 
in  the  variant  orthography.  Adams  v.  State,  67  Ala.  89.  See 
Rice,  Annotated  Colo.  Code,  Civ.  Proc.  title  Idem  Sonans. 

In  a  recent  Texas  case  Judge  Willson  says:  "Hix  Nowels" 
and  "Hicks  Nowells"  are  idem  sonans,  and  the  court  did  not  err 
in  its  charge  to  the  jury  in  disregarding  the  difference  in  the 
•orthography  of  the  name,  and  in  omitting  to  submit  to  the  jury 
for  their  determination  whether  or  not  the  name  as  spelled  in  the 
indictment  was  the  same  as  that  proved  on  the  trial.  There  was 
no  room  for  doubt  upon  this  question,  and  the  court  might  well 
assume  that  the  names  were  identical.  If  there  had  been  any 
doubt  as  to  whether  the  names  were  idem  sonans,  it  would  have 
been  proper,  and  perhaps  essential,  to  have  submitted  the  question 
to  the  jury.  Henry  v.  State,  7  Tex.  App.  388;  Spoonemore  v. 
State,  25  Tex.  App.  35S. 


172  LAW    OF    EVIDENCE    IN    CRIMINAL    CASES. 

The  law  docs  not  treat  every  slight  and  trivial  variance,  such  a& 
the  omission  of  a  letter,  as  fatal.  The  variance  should  be  a  sub- 
stantial and  material  one,  such  as  would  render  the  instrument 
offered  in  evidence  a  different  and  distinct  instrument  from  the 
one  described  in  the  petition,  to  authorize  the  court  to  exclude  it 
from  the  jury  on  the  ground  of  variance.  The  rule  of  idem 
soncms,  when  strictly  adhered  to,  is  considered  too  rigid,  and  has 
been  much  relaxed  in  modern  practice.  Stevens  v.  Steblins,  4 
111.  25. 

It  is  claimed  that  mere  identity  of  sound  is  a  surer  method  of 
designating  the  names  of  persons  than  that  of  depending  upon 
mere  identity  in  the  orthography.  Ahiibol  v.  Beniditto,  2  Taunt. 
401;  Myer  v.  Fegaly,  39^ Pa.  429. 

If  the  sound  of  a  name  idem  sonans  be  not  affected  by  a  mis- 
spelling which  occurs,  such  error  is  immaterial,  and  any  two  names 
being  alike  in  original  derivation  and  used  interchangably,  though 
different  in  sound,  do  not,  by  the  use  of  either,  constitute  a  ma- 
terial variance.  2  Rolle,  Abr.  135;  Bacon,  Abr.  title  Misnomer. 
The  doctrine  of  idem  sonans  should  not  be  too  rigidly  enforced. 
The  principal  question  in  all  cases  should  ask  as  to  the  materiality 
of  the  variance.  Belton  v.  Fisher ;  44  111.  32.  And  this  is  always- 
a  question  of  fact,  to  be  determined  by  the  jury.  In  the  case  of 
foreign  names,  courts  are  reluctant  to  pronounce  that  a  variance 
which  in  most  instances  is  a  simple  misspelling,  or  the  result  of  a 
mispronunciation  shall  affect  vested  rights  honestly  acquired.  In 
an  early  case  the  supreme  court  of  Illinois  has  held,  where  ma- 
terial variance  was  claimed  in  the  names  of  a  conveyance  that 
Michael  Allen,  named  in  a  deed  as  grantor  was,  presumptively,. 
Michael  Allaine,  grantee  of  the  same  property  as,  also,  that  Oto- 
ine  Allaine  was,  presumptively,  Antoine  Allaine.  Chiniguy  v. 
Catholic  Bishop  of  Chicago,  41  111.  148. 

The  missioning  of  a  defendant's  name  in  a  summons  is  no  ex- 
cuse for  non-appearance  to  defend,  especially  where  it  appears 
that  the  name  "Butler"  was  written  "Bulter."  Knowing  there 
is  a  suit  against  himself,  defendant  is  held  bound  to  appear.  Iler- 
mann  v.  Butler,  59  111.  225. 

The  rule  is,  that  if  the  distinction  in  the  pronunciation  of  the 
names  is  indistinguishable  in  ordinary  conversation,  the  doctrine 
of  idem  sonans  applies.  Barnes  v.  People,  IS  111.  52.  The  po- 
sition contended  for  is  sustained  by  a  Maine  decision  which  holds 


VARIANCE,    IDEM    SONANS.  173 

that,  although  the  surname  of  a  party  defendant  has  been  spelled 
in  seven  different  ways  in  the  course  of  a  judicial  proceeding,  the 
names  were  all  idem  sonans  and  sufficiently  identified  the  defend- 
ant.    Millett  v.  Blake,  81  Me.  531. 

§  125.  Extended  Tabulation  of  the  Cases  from  Rapalje's 
Criminal  Procedure. — Mr.  Rapalje  in  his  well  known  work  on 
Criminal  Procedure  at  Section  83,  tabulates  a  series  of  cases  that 
have  been  decided  upon  this  interesting  topic.  The  section  is 
reproduced  in  this  connection  as  affording  by  far  the  most  lumin- 
ous exposition  of  this  subject  to  be  found  in  any  of  the  text-books 
early  or  late. 

The  rule  as  to  the  materiality  of  variances  between  the  name 
as  stated  in  the  indictment  and  as  proved  on  the  trial,  is  that  the 
mere  misspelling  of  a  name,  whether  of  the  accused  or  of  a  third 
person,  is  not  fatal  to  the  indictment,  unless  the  difference  causes 
.a  material  change  in  the  pronunciation  of  the  name;  whether  it 
•does  or  not  is,  on  the  trial  of  the  general  issue,  a  question  for  the 
jury  and  not  for  the  court  ( Underwood  v.  State,  72  Ala.  220. 
But  see  as  to  the  last  point,  Com.  v.  Biggs,  14  Gray,  376,  77  Am. 
Dec.  333)  or  where  the  court  does  pass  upon  it,  a  stringent  con- 
struction will  not  be  applied.  Foster  v.  State,  1  Tex.  App.  531. 
Thus  "Mary  Etta"  is  idem  sonans  with  "Marietta,"  Goode  v. 
State,  2  Tex.  App.  520;  "Hutson"  with  "Herdson,"  State  v.  Hut- 
son,  15  Mo.  512  (a  strange  conclusion);  "Owens  D.  Havely"  with 
"Owen  D.  Haverly,"  State  v.  Havely,  21  Mo.  198;  "Blankenship" 
with  "Blackenship,"  State  v.  BlanJcenship,  21  Mo.  504  (one  judge 
dissenting);  "George  "Washington  Bank"  with  "Geo.  Washington 
Bank,"  Patterson  v.  People,  12  Hun,  137;  "'Chin  Chan"  with 
"Chin  Chang,"  Wells  v.  State,  4  Tex.  App.  20;  and  "McLaugh- 
lin" with  "McGlofin,"  McLaughlin  v.  State,  52  Ind.  476.  On 
the  other  hand,  the  following  among  others  have  been  held  not  to 
be  idem  sonans:  "Spintz"  and  "Sprintz,"  United  States  v. 
Spintz,  18  Fed.  Eep.  377;  "Clements  Turner"  and  "Turner  Cle- 
ments," Clements  v.  State,  21  Tex.  App.  25S;  "Tarpley"  and 
"Tapley,"  Tarpley  v.  State,  79  Ala,  271;  "Kinney"  and  -.Me Kin- 
ney," Kinney  v.  State,  21  Tex.  App.  34S;  "Donald"  and  "Don- 
nell,"  Bonnell  v.  United  States,  1  Morris  (Iowa)  141,  39  Am. 
Dec.  457;  "Mincher"  and  "Minshen,"  Adams  v.  State,  67  Ala.  89; 
"Abie  Burgamy"  and  "Avie  Burgamy,"  Burgamy  v.  State,  4 
Tex.  App.  572;  and  "Wood"  and  "Woods,"  Neid&rluck  v.  State, 


174  '"  LAW    OF   EVIDENCE   IN    CRIMINAL   CASES. 

21  Tex.  App.  320.  Some  of  these  decisions  are  unsatisfactory,, 
notably  a  North  Carolina  case,  where  "Willis  Fain"  was  held  to 
be  idem  sonans  with  "Willie  Fanes,"  State  v.  Hare,  95  1ST.  C. 
6S2;  but  no  doubt  "Chatam  Bank"  is  idem  sonans  with  "Chatham 
Bank."  Both  v.  State,  10  Tex.  App.  27.  Where  the  name 
"George  J.  Farley"  appeared  four  times  in  an  indictment  which 
went  on  to  allege  an  intent  to  kill  said  "Frank  I.  Farley,"  it  was- 
held  proper  to  instruct  the  jury  that  if  this  was  clearly  a  clerical 
error  and  not  prejudicial  to  the  accused,  it  was  not  a  fatal  vari- 
ance. State  v.  McCunniff,  70  Iowa,  217;  State  v.  Ford,  38  La. 
Ann.  797.  So,  where  on  the  separate  trial  of  one  for  a  joint  of- 
fense with  one  "Land,"  it  appeared  the  latter' s  name  was  "Lance," 
but  there  was  no  doubt  as  to  his  identity,  the  variance  was  deemed 
immaterial.  Davenport  v.  State,  38  Ga.  184.  But  where  an  in- 
dictment gave  the  name  of  the  injured  person  as  "McKasky," 
"McKlaskey,"  and  "McKloskey,"  and  the  proof  showed  its  proper 
spelling  to  be  "McCoskey,"  the  conviction  was  set  aside.  Black 
v.  State,  57  Ind.  109.  So  an  indictment  charging  a  trespass  upon 
land  in  possession  of  A,  is  not  supported  by  proof  of  a  trespass 
upon  land  in  possession  of  B.  State  v.  Sherrill,  81  N.  C.  550. 
And  a  charge  that  an  affidavit  was  sworn  to  by  J.  N.  P.  is  not 
supported  by  proof  that  J.  P.  signed  it.  Pickens  v.  State,  6 
Ohio,  274.  But  a  misnomer  is  fatal  only  when  it  is  of  a  party 
whose  existence  is  essential  to  the  offense  charged.  United  States 
v.  Howard,  3  Sumn.  12. 

A  variance  is  not  now  regarded  as  material  unless  it  is  such  as 
i night  mislead  the  defense,  or  might  expose  the  accused  to  the 
danger  of  being  put  twice  in  jeopardy  for  the  same  offense.  Ab- 
bott, Trial  Brief,  §  680.  Citing  inter  alia  Earl,  J.,  in  Harris  v. 
People,  64  K  Y.  148. 


CHAPTER  XXL 

VIEWING  THE  PREMISES. 

§  12G.    View  Regulating  the  Statute. 

127.  Theory  of  Mr.  Wharton. 

128.  New  York  Code  Provisions. 

129.  The  Views  of  the  New  York  Supreme  Court. 

130.  Vigorous  Opposition  to  the  Views  Last  Cited. 

§  126.  View  Regulated  by  Statute. — In  criminal  cases  it 
appears  that  the  jury  are  not  permitted  to  view  the  premises 
where  the  crime  was  alleged  to  have  been  committed,  unless  it 
is  authorized  by  statute.  It  was  not  permitted  by  the  common 
law,  because  the  jury  could  not  or  should  not  act  on  the  case 
except  upon  information  received  by  the  evidence  given  in  court. 
The  question  was  presented  in  a  murder  trial  in  Massachusetts  in 
1829,  and  it  was  refused,  though  moved  for  by  the  prisoner  and 
and  consented  to  by  the  attorney  general.  But  on  the  second 
trial  of  the  same  case,  the  jury  made  the  request  that  they  be 
permitted  to  see  the  place  of  the  murder,  and  both  parties  con- 
sented, and  the  court  hesitated,  but  finally  granted  the  request, 
"  Because,"  the  court  said,  "  this  course  was  without  precedent, 
and  if  it  should  turn  out  to  be  incorrect,  they  had  doubts  whether 
they  could  hold  the  prisoner  to  his  consent."  And  in  this  case, 
the  court  directed  that  no  person  should  go  with  the  jury  except 
the  officers  having  them  in  charge,  and  that  no  person  should 
speak  to  them  under  penalty  of  a  contempt.  Plans  were  exhibited 
and  explained  to  the  jury  in  court,  and  they  were  permitted  to 
take  them  with  them  to  aid  them  in  making  the  view.  Harris. 
Identification,  §  5S1;  Com.  v.  Knapp,  9  Pick.  515,  20  Am.  Dec. 
491.     See  Mass.  Eev.  Stat.  chap.  137,  §  10. 

The  rule  still  holds  that  in  criminal  trials  a  view  of  the  prem- 
ises will  seldom  be  permitted  in  the  absence  of  statutory  enact- 
ment authorizing  it. 

§  127.  Theory  of  Mr.  Wharton.— Mr.  Wharton  says  :  "  The 
practice  which  obtains  in  civil  suits,  in  permitting  the  jury  to  visit 
the  scene  of  the  res  gestce  is  adopted  in  criminal  issues  whenever 
such  a  visit  appears  to  the  court  important  for  the  elucidation  of 

175 


176  LAW    OF   EVIDENCE   IN   CRIMINAL   CASES. 

the  evidence.  The  visit,  however,  should  be  jealously  guarded, 
so  as  to  exclude  interference  by  third  parties,  and  should  be  made 
under  sworn  officers.  Such  view  may  be  granted  after  the  judge 
has  summed  up  the  case.  But  where  only  a  part  of  the  jury 
visited  the  premises,  and  this  after  the  case  was  committed  to  the 
jury  for  their  final  deliberation,  this  was  held  ground  for  a  new 
trial.  The  visit  also  must  be  made  in  the  presence  of  the  accused, 
who  is  entitled  to  have  all  evidence  received  by  the  jury,  taken  in 
his  presence."  3  Whart.  Am.  Crim.  Law  (7th  ed.)  p.  151, 
§  31G0. 

§  128.  New  York  Code  Provisions. — When,  in  the  opinion  of 
the  court,  it  is  proper  that  the  jury  should  view  the  place  in  which 
the  crime  is  charged  to  have  been  committed,  or  in  which  any 
material  fact  occurred,  it  may  order  the  jury  to  be  conducted,  in 
a  body,  under  charge  of  proper  officers,  to  the  place,  which  must 
be  shown  to  them  by  a  judge  of  the  court,  or  by  a  person  appointed 
by  the  court  for  that  purpose.  The  officers  must  be  sworn  to 
suffer  no  person  to  speak  to  or  communicate  with  the  jury,  nor  to 
do  so  themselves,  on  any  subject  connected  with  the  trial,  and 
to  return  them  into  court  without  unnecessary  delay,  or  at  a 
.specified  time.  Cook's  N.  Y.  Code,  Crim.  Proc.  §§  411,  412,  cit- 
ing Abbott,  Trial  Brief,  72-74,  26  Cent.  L.  J.  436;  People  v. 
Johnson,  110  K  Y.  143,  46  Hun,  673;  People  v.  Buddensiek, 
103  K  Y.  501,  57  Am.  Eep.  766;  People  v.  Oyer  &  Terminer, 
36  Hun,  279,  3  K".  Y.  Crim.  Rep.  215;  People  v.  Tyrrell,  3  K 
Y.  Crim.  Eep.  142;  People  v.  Pahner,  43  Hun,  407,  5  N.  Y. 
•Crim.  Rep.  106,  disapproving  Shular  v.  State,  105  Ind.  289,  55 
Am.  Rep.  211. 

§  129.  The  Yiews  of  the  New  York  Supreme  Court. — The 
vigorous  contention  that  has  serged  around  a  very  recent  case  ad- 
monishes me  to  illustrate  this  topic  by  a  careful  reference  to  what 
that  case  decides.  The  defendant  had  been  indicted  for  an  assault, 
and  the  substance  of  the  charge  was,  that  he  had  shot  at  and 
wounded  one  Ira  Gray,  at  a  saloon  in  the  town  of  Catskill,  JST.  Y. 
The  trial  was  before  the  Green  county  oyer  and  terminer,  and 
upon  the  aj^plication  of  the  defendant's  counsel,  the  county  judge 
decided  to  allow  a  view  of  the.  premises  by  the  jury,  the  judge 
and  two  officers  of  the  court;  but  refused  to  allow  the  defendant 
•or  his  counsel  to  accompany  them.  To  this  extraordinary  ruling, 
the  defendant's  counsel  naturally  excepted.     On  a  review  had  in 


VIEWING   THE   PREMISES.  177 

the  general  term,  the  opinion  written  by  the  presiding  justice 
states  the  conclusions  of  the  court  in  language  that  is  apt  to 
crystallize  itself  as  the  law  governing  such  cases  for  the  future. 
In  view  of  the  importance  of  this  subject  and  the  frequency  with 
which  the  jury  are  asked  to  inspect  the  premises  where  crime  is 
alleged  to  have  been  committed,  I  shall  make  an  extended 
quotation  from  the  opinion  which  was  concurred  in  by  Judge 
Bockes.  The  case  will  be  found  reported  in  43  Hun,  397,  under 
the  title  of  People  v.  Palmer :  "  Was  evidence  given  to  the  jury 
in  this  case,  in  the  absence  of  the  prisoner  ?  One  member  of 
the  court  and  two  officers,  went  out  from  the  court  room.  The 
two  other  members  of  the  court  and  the  prisoner  and  his  counsel 
remained.  The  prisoner  asked  to  accompany  the  jury,  but  this 
was  refused.  On  returning,  the  member  of  the  court  who  had 
gone  with  them  stated  that  the  jury  had  been  up  to  the  saloon; 
that  the  jury  had  not  been  allowed  to  communicate  with  one 
another,  or  hold  any  conversation  wTith  any  person  outside. 

"The  view  of  the  place  was  itself  evidence.  It  might  be  very 
important  for  the  jury  to  know  the  size  of  the  room.  For 
instance,  the  defendant  might  have  testified  that  the  room  was 
not  more  than  ten  feet  long,  and  that  the  complainant,  standing 
at  one  end,  had  struck  with  a  stick  the  defendant,  standing  at  the 
■other.  The  jury  may  have  been  shown  a  room  twenty  feet  long. 
And  the  length  of  the  room  would  tend  to  discredit  defendant's 
testimony,  and  would  be  material  evidence  whether  the  affray 
arose  as  defendant  claimed. 

"It  is  not  an  answer  to  this  argument  to  say  that  there  could  be 
no  doubt  as  to  the  size  of  the  room  by  those  who  were  allowed  to 
see  it;  because  the  principle  is  not  that  no  evidence,  true  or  false, 
shall  be  so  given.  Hence,  if  the  size  and  appearance  of  the  room 
tends  in  any  way  to  bear  upon  the  question  of  the  defendant's 
guilt  or  innocence,  it  is  evidence,  and  must  not  be  given  to  the 
jury  in  his  absence.  Bullet  holes  and  splashes  of  blood  might  be 
in  the  room,  and  their  position  might  bear  strongly  on  the  guilt 
or  innocence  of  the  prisoner.  In  this  very  case  importance  seems 
to  have  been  attributed  to  the  existence,  or  non-existence,  of  a 
bullet  hole  aft  a  certain  place  in  the  room.  If  it  would  have  been 
evidence  to  testify  that  there  was  such  a  bullet  hole,  then  it  was 
giving  evidence  to  show  to  the  jury  the  bullet  hole  itself. 

"But  again,  either  by  words,  or  by  gestures,  or  by  the  mere  fact 
12 


178  LAW    OF   EVIDENCE    IN    CRIMINAL   CASES. 

that  they  were  taken  to  a  certain  room  by  the  officers  and  the  member 
of  the  court,  the  jury  were  informed  that  that  room  was  the  place 
where  the  affray  happened.  Now,  in  the  first  place,  this  was  un- 
sworn evidence.  No  one  stated  to  them  under  oath  that  that  was- 
the  place  of  the  affray.  If  on  a  trial  any  articles  are  to  be 
exhibited  to  the  jury,  as,  for  instance,  the  clothes  of  a  murdered 
man,  the  pistol  of  the  murderer,  and  the  like,  before  they  can  be 
given  in  evidence  proof  must  be  given  in  respect  to  them.  Some 
one  must,  on  oath,  identify  them  as  being  what  they  are  alleged 
to  be.  But  there  was  no  identification  of  the  room  shown  to  the 
jury.  Did  anyone  testify  before  the  jury,  '  This  is  the  saloon  % ' 
If  so,  then  that  evidence  was  given  in  defendant's  absence;  if  not,, 
then  the  room  was  shown  without  identification  by  sworn  testi- 
mony. But,  in  the  next  place,  the  defendant  had  has  no  opportunity 
of  denying  that  the  room  shown  was  that  saloon.  What  knowl- 
edge has  he  as  to  the  place  to  which  the  jury  were  taken  ?  They 
may  have  been  taken  to  another  room  distant  from  the  place  of 
the  affray.     He  has  no  means  of  knowing  where  they  went. 

"Suppose  it  were  in  dispute  whether  the  affray  occurred  in  one 
room  or  in  another  of  a  house.  Can  it  be  permitted  that  the  jury 
shall  be  shown  by  two  officers  and  one  member  of  the  court,  in 
the  defendant's  absence,  such  room  as  they  may  think  best  to 
exhibit,  and  that  the  defendant  shall  thus  be  kept  in  ignorance 
what  room  was  so  exhibited?  For,  unless  the  defendant  is  pres- 
ent, he  cannot  know  what  room  was  exhibited.  Could  the  alleged 
clothes  of  a  murdered  man,  or  the  alleged  pistol  of  the  murderer, 
be  exhibited  to  a  jury  at  some  place  outside  of  the  court  room  and 
in  the  absence  of  the  defendant  ?  If  the  defendant  had  been  pres- 
ent, he  might  have  denied  that  the  room  exhibited  was  the  place 
of  the  affray.  He  might  have  called  witnesses  to  show  this. 
But,  as  it  is,  he  cannot,  because  he  does  not  know  what  room  was 
exhibited.  True  the  judge  who  accompanied  them  said,  on  his 
return,  that  they  had  been  taken  to  the  saloon  of  Hallenbeck 
Brothers.  But  how  did  the  defendant  know  what  place  the  judge 
and  the  two  officers  believed  to  be  that  saloon?" 

So  it  has  been  held  no  error  for  the  jury  to  make  a  view  of  the 
place  where  a  felony  is  claimed  to  have  been  committed,  under 
the  order  of  the  court  and  in  charge  of  the  sheriff,  where  the 
privilege  is  awarded  the  accused  to  accompany  the  jury,  though 
he  may  refuse  to  attend  the  view.  Bhjtlie  v.  State,  47  Ohio  St. 
234. 


VIEWING    THE   FKEMISES.  179 

§  130.  Vigorous  Opposition  to  the  Views  last  Cited. — The 

elucidations  of  the  Palmer  case  will  favorably  impress  the  prac- 
titioner with  the  entire  equity  of  the  practice  outlined,  and  it  is 
certainly  matter  of  surprise  to  find  that  the  conclusions  stated  are 
under  the  judicial  displeasure  of  several  courts  of  high  repute — 
notably  that  of  Indiana.  Judge  Elliott  in  Shular  v.  State,  105 
Ind.  294,  55  Am.  Rep.  211,  says:  "It  cannot  be  seriously  doubt- 
ed that  evidence  can  only  be  delivered  to  a  jury  in  a  criminal 
case  in  open  court,  and,  unless  there  is  a  judge,  or  judges,  present, 
there  can  be  no  court.  The  statute  does  not  intend  that  the  judge 
shall  accompany  the  jury  on  a  tour  of  inspection;  this  is  so  obvi- 
ous that  discussion  could  not  make  it  more  plain.  The  jury  are 
not,  the  statute  commands,  to  be  spoken  to  by  any  one  save  by 
the  officer  and  the  person  appointed  by  the  court,  and  they  are 
forbidden  to  talk  upon  the  subject  of  the  trial.  It  is  the  duty  of 
the  jurors  to  view  the  premises,  not  to  receive  evidence,  and 
nothing  could  be  done  by  the  defendant,  or  by  his  counsel,  if 
they  were  present,  so  that  their  presence  could  not  benefit  him  in 
any  way,  nor  their  absence  prejudice  him.  The  statute  express- 
ly provides  who  shall  accompany  the  jury,  and  this  express  pro- 
vision implies  that  all  others  shall  be  excluded  from  that  right  or 
privilege.  It  is  quite  clear  from  these  considerations,  that  the 
statute  does  not  intend  that  the  defendant  or  the  judge  shall 
accompany  the  jury,  and  it  is  equally  clear  that  the  view  obtained 
by  the  jury  is  not  to  be  deemed  evidence. 

"  Turning  to  the  authorities  we  shall  find  our  conclusion  well 
supported.  The  statute  of  Kansas  is  substantially  the  same  as 
ours,  except  that  it  does  not  require  the  consent  of  all  the  parties, 
and  in  a  strongly  reasoned  case  it  was  held  that  it  was  not  error 
to  send  the  jury,  unaccompanied  by  the  defendant,  to  view  the 
premises  where  a  burglary  had  been  committed.  Brewer,  J.,  by 
whom  the  opinion  of  the  court  was  prepared,  said,  in  speaking  of 
the  statute:  'Nothing  is  said  in  it  about  the  presence  of  the 
defendant,  the  attorneys,  the  officers  of  the  court,  or  the  judge. 
On  the  contrary,  the  language  seems  to  imply  that  only  the  jury 
and  officer  in  charge  are  to  be  present.  The  trial  is  not  tempo- 
rarily transferred  from  the  court-house  to  the  [dace  of  view. 
They  are  'to  be  conducted  in  a  body'  'while  thus  absent.'  This 
means  that  the  place  of  trial  is  unchanged,  and  that  the  fury,  and 
the  jury  only,  are  temporarily  removed  therefrom.     Just  as  when 


ISO  LAW    OF    EVIDENCE   IN    CRIMINAL   CASES. 

the  case  is  finally  submitted  to  the  jury,  and  they  retire  for  delib- 
eration, there  is  simply  a  temporary  removal  of  the  jury.  The 
place  of  trial  is  unchanged.  And  whether  the  jury  retire  to  the 
next  room,  or  are  taken  to  a  building  many  blocks  away,  the  effect 
is  the  same.  In  contemplation  of  law  the  place  of  trial  is  not 
changed.  The  judge,  the  clerk,  the  officers,  the  records,  the  par- 
ties, and  all  that  go  to  make  up  the  organization  of  the  court 
remain  in  the  court  room.'     State  v.  Adams,  20  Ivan.  311. 

"The  keenest  scrutiny  will  disclose  no  infirmity  in  this  reason- 
ing, and  it  is  in  close  agreement  with  that  of  our  own  court.  In 
Jejfersonville,  M.  &  I.  R.  Co.  v.  Bowen,  40  Ind.  515,  this  court 
overruled  the  case  of  JSvansville  &  C.  S.  L.  B.  Co.  v.  Cochran, 
10  Ind.  560,  and  adopted  the  views  of  the  supreme  court  of 
Iowa,  expressed  m  Close  v.  Samm,  27  Iowa,  503.  That  court,  in 
speaking  of  a  statute  similar  to  ours,  said:  'It  seems  to  us  that 
it  was  to  enable  the  jury,  by  the  view  of  the  premises  or  place, 
to  better  understand  and  comprehend  the  testimony  of  the  wit- 
nesses respecting  the  same,  and  thereby  the  more  intelligently  to 
apply  the  testimony  to  the  issues  on  trial  before  them,  and  not  to 
make  them  silent  witnesses  in  the  case,  burdened  with  testimony 
unknown  to  both  parties,  and  in  respect  to  which  no  opportunity 
for  cross-examination  or  correction  of  error,  if  any,  could  be 
afforded  either  party.'  The  doctrine  of  Close  v.  Samm,  supra, 
was  again  expressly  approved  in  Heady  v.  Yevay,  M.  S.  <&  V. 
Transp.  Co.  52  Ind.  117,  and  it  was  said:  'It  results  that  the 
impression  made  upon  the  minds  of  the  jurors  does  not  constitute 
a  part  of  the  evidence  in  the  cause.'  The  case  of  Jeffersonville, 
2f.  &  I.  JR.  Co.  v.  Bowen,  supra,  was  approved  in  Gagg  v.  Vet- 
ter,  41  Ind.  228,  13  Am.  Rep.  322,  and  in  Indianapolis  v.  Scott, 
72  Ind.  196.  In  the  case  last  cited  it  was  said:  'Perhaps,  strict- 
ly speaking,  the  jury  had  no  right  to  do  anything  more  than  to 
view  the  premises,  thereby  to  enable  them  the  better  to  apply  the 
evidence  given  upon  the  trial.'  " 

The  jury  are  simply  to  gain  assistance  in  applying  the  evidence, 
and  not  to  find  new  evidence,  by  viewing  the  premises,  and  the 
rule  best  supported  by  reason,  therefore,  if  not  by  the  weight  of 
authority,  would  seem  to  be  that  the  presence  of  the  accused  is 
not  necessary  upon  such  an  occasion.  Shular  v.  State,  105  Ind. 
290,  55  Am.  Rep.  211. 

Against  the  authority  of  this  case  must  be  set  the  opinion  of 
Judge  Barrett  previously  noticed. 


CHAPTER  XXII. 
OPENING  AND  CLOSING  THE  CASE. 

§  131.  Object  of. 

132.  Extent  to  wliicli  Counsel  may  go  in  Opening. 

133.  Duty  of  the  Respective  Counsel  in  Closing  the  Case. 

134.  Arguing  from  Facts  not  in  Evidence. 

§  131.  Object  of. — The  object  of  an  opening  of  a  case  to  the 
jury  is  to  state,  briefly,  the  nature  of  the  action,  the  substance  of 
the  pleadings,  the  points  in  issue,  the  facts  and  circumstances  of 
the  case,  and  the  substance  of  the  evidence  to  be  adduced  in  its 
support.  The  counsel  for  the  plaintiff,  in  opening,  may  also  state 
the  nature  of  the  defense,  if  it  appears  upon  the  record.  But 
further  than  this,  he  ought  not  to  go,  it  seems.  Each  party  should 
be  confined  to  a  legitimate  and  proper  opening  of  his  own  case; 
the  plaintiff's  counsel  to  a  statement  of  his  cause  of  action,  and 
the  defendant's  counsel  to  a  statement  of  his  answer  to  the  plain- 
tiff's case,  and  the  evidence  he  proposes  to  give  to  sustain  it;  and 
in  such  opening  should  not  comment,  in  the  way  of  summing  up, 
after  the  English  manner,  upon  the  plaintiff's  evidence,  any  fur- 
ther than  is  essential  to  a  proper  understanding  by  the  jury  of 
the  defendant's  evidence.  Ay  vault  v.  Chamberlain,  33  Barb. 
229. 

§  132.  Extent  to  which  Counsel  may  go  in  Opening. — The 
extent  to  which  counsel  may  go,  in  opening  a  case  to  a  jury,  can- 
not, in  the  nature  of  things,  be  regulated  by  precise  rule.  The 
court  may  doubtless  interfere  in  the  interest  of  justice  to  restrain 
undue  license  on  the  part  of  counsel  in  addressing  the  jury.  It 
might  perhaps  be  its  legal  duty  to  interfere,  in  a  criminal  case, 
where  a  prosecuting  officer,  under  the  guise  of  opening  the  case 
to  the  jury,  should  seek  to  prejudice  them  by  the  recital  of  facts 
proposed  to  be  proved,  which  would  be  manifestly  incompetent, 
if  offered  in  evidence.  See  State  v.  Bateman,  52  Iowa,  604; 
State  v.  Meshek,  61  Iowa,  316;  State  v.  Eonig,  78  Mo.  249;  Mo- 
rales v.  State,  1  Tex.  A  pp.  494,  28  Am.  Rep.  411);  Peoplev.  A'./ 
ley,  94  N.  Y.  526;  Kizer  v.  State,  12  Lea,  564;  State  v.  Eoyt,  47 

1 8 1 


182  LAW  OF  EVIDENCE  IN  CRIMINAL  CASES. 

Conn.  518,  36  Am.  Rep.  89;  State  v.  Collins,  70  N.  C.  241,  16 
Am.  Rep.  771. 

In  Scripps  v.  Reilly,  38  Mich.  10,  the  opinion  of  Mr.  Justice 
Graves  ventilates  the  subject  under  review  in  the  following  lan- 
guage: "There  is  no  doubt  of  the  right  of  this  court  to  revise  in 
such  a  case  as  this.  If  the  trial  court  may  pursue  any  course  it 
pleases  in  relation  to  the  opening  statement,  if  it  may  act  inde- 
pendently of  all  control,  then  the  idea  of  a  rule  to  be  prescribed 
by  this  court,  under  the  constitution  and  legislative  enactment,  for 
its  guidance  and  government,  is  preposterous  and  absurd.  But 
the  point  is  too  plain  for  argument.  This  court  will  not  revise 
such  matters  unless  there  is  plain  evidence  of  action  amounting  to 
what  is  called  an  abuse  of  discretion,  and  calculated  to  injuriously 
affect  the  legal  rights  of  a  party;  and  where  such  is  the  case, 
whether  the  result  of  accident,  or  inadvertence,  or  misconception, 
it  will  take  cognizance.  The  error  in  this  case  was  not  cured,  and 
is  one  subject  to  review,  and  is  sufficient  to  require  a  reversal." 

Since  the  decision  of  the  case  of  Scripts  v.  Reilly,  supra,  an 
impression  seems  to  have  prevailed  that  the  opening  statements 
of  counsel  might  be  challenged  step  by  step,  and  questions  of  rel- 
evancy and  materiality  of  evidence  raised  and  considered,  and  even 
argued  at  length,  on  counsel  stating  what  he  proposed  to  prove. 
Under  this  impression  the  practice  of  interrupting  counsel,  and 
demanding  the  judgment  of  the  court  on  the  competency  of  what 
he  proposed  to  show,  has  in  some  cases  been  carried  to  extraordi- 
nary lengths,  and  elaborate  arguments  had  been  indulged  in  over 
the  question  whether  counsel  should  be  suffered  to  make  certain 
statements  of  proposed  evidence  to  the  jury.  Any  such  practice 
is  a  great  abuse,  and  in  a  desperate  criminal  case  might  be  resorted 
to  for  the  purpose  of  defeating  the  ends  of  justice,  by  breaking 
the  force  of  a  connected  statement  of  the  case  to  the  jury,  and  by 
prolonging  the  trial  until  the  trouble  and  expense  should  dis- 
hearten the  authorities,  and  result  in  a  relaxation  of  effort  for 
conviction.  The  cases  must  be  rare  in  which  counsel  would  be 
justified  in  interrupting  the  opening  of  his  antagonist  to  raise 
questions  of  competency;  and  when  he  does  so,  the  questions 
ought  to  be  disposed  of  summarily,  and  without  argument.  A 
very  clear  case  of  abuse  however  would  justify  the  court  in  inter- 
rupting and  restricting  the  counsel's  opening,  {Porter  v.  Throop, 
47  Mieh.  313;  People  v.    Wilson,  55  Mich.  506)  for  as  a  general 


OPENING   AND    CLOSING   THE   CASE.  1S3 

rule  the  interference  of  the  court  with  counsel,  when  opening  a 
case  to  a  jury,  is  a  matter  of  discretion,  the  exercise  of  which  is 
not  the  subject  of  exception.      Walsh  v.  People,  88  1ST.  Y.  458. 

§  133.  Duty  of  the  Respective  Counsel  in  Closing  the 
Case. — The  presiding  judge  should  rigidly  insist  that  the  respect- 
ive attorneys  in  a  criminal  case,  should  confine  themselves  to  the 
facts  developed  by  the  evidence  in  summing  up  the  case  to  the 
jury.  Where,  however,  either  side,  through  inadvertence,  has 
alluded  to  an  alleged  state  of  facts  not  warranted  by  the  evidence, 
it  is  proper  to  allow  some  reply — the  extent  of  the  explanation  is 
largely  within  the  discretion  of  the  court.  People  v.  Mitchell,  62 
Cal.  411;  Gross  v.  State,  68  Ala.  476;  Ferguson  v.  State,  49  Ind. 
33;  Greene  v.  State,  17  Tex.  App.  305;  Beeves  v.  State,  84  Ind. 
116. 

A  frequent  illustration  of  the  principles  suggested  in  the  fore- 
going text  is  the  comment  as  to  the  failure  of  either  side  to  place 
&  person  on  the  stand  who  has  been  regularly  subpoenaed.  This 
practice  stands  condemned;  and  the  court  should  promptly  sup- 
press the  least  allusion  to  it.     State  v.  Jones,  77  jST.  C.  520. 

In  Blackman  v.  State,  78  Ga.  596,  the  accused  answering  to  an 
indictment  for  murder,  before  the  impanelling  of  the  jury  made 
&  motion  for  a  postponement  of  the  case  on  the  ground  of  material 
testimony  not  then  available.  The  parties  were  subpoenaed;  but 
during  the  progress  of  the  trial  they  were  not  examined.  The 
prosecuting  attorney  in  summing  up  the  case  to  the  jury  com- 
menting upon  this  fact  began  a  sentence  which  the  court  promptly 
suppressed.  On  review,  the  appellate  court  reversed  the  judg- 
ment, holding  that  the  trial  court  should  not  only  have  arrested 
the  remark,  but  should  have  expressly  instructed  the  jury  to  dis- 
regard it.  The  following  suggestive  language  will  the  better  in- 
dicate the  juridicial  view.  ''This  defendant  had  made  a  motion 
to  continue  this  case  for  the  absence  of  certain  witnesses,  by  whom 
he  expected  to  prove  that  he  was  not  near  the  scene  of  the  homi- 
cide at  the  time  it  took  place.  These  persons  appeared,  but  he 
failed  to  introduce  them.  This  motion  was  made  before  the  jury 
was  empanelled,  and  was  probably  made  in  writing,  or,  if  made 
orally,  there  was  no  evidence  of  it  before  that  jury;  and  it  was 
certainly  a  very  damaging  circumstance  to  allow  counsel  to  pro- 
ceed and  argue  the  guilt  of  the  prisoner  from  his  failure  to  pro- 
duce these  witnesses;  and  when  the  court's  attention  was  called  to 


184  LAW    OF   EVIDENCE   IN   CRIMINAL   CASES. 

this  subject,  he  should  have  promptly  reproved  the  proceeding 
and  admonished  the  jury  that  it  was  improper,  and  that  they 
should  give  it  no  attention;  but  this  lie  seems  to  have  declined. 
Unless  this  was  a  case  of  circumstantial  evidence  so  strong  as  to 
imperatively  demand  the  finding  the  jury  made,  we  can  easily  see 
how  injury,  and  great  injury,  might  have  resulted  to  this  defend" 
ant  from  such  a  course  of  proceeding.  The  defendant  may  be 
guilty,  and  may  have  been  proven  to  be  gnilty,  but  his  guilt  could 
be  established  only  by  legal  testimony  properly  introduced  to  the 
jury  by  witnesses  with  whom  he  was  entitled  to  be  confronted. 
Has  the  defendant  had  a  fair  trial  with  none  but  legal  testi- 
mony before  the  jury  ?  We  think  not;  we  cannot  undertake  to 
say  what  influence  the  circumstances  improperly  insisted  upon  in 
the  argument  may  have  had  upon  the  jury;  and  a  new  trial  is 
therefore  granted." 

Misstatements  of  the  testimony  in  summing  up,  do  not  of  them- 
selves constitute  error  especially  if  promptly  corrected  by  the 
court;  nor  do  illogical  inferences  from  the  facts  in  evidence.  Ab- 
bott, Trial  Brief,  §  713,  citing  People  v.  Bamhart  59  Cal.  381, 
402;  Shular  v.  State,  105  Ind.  289,  55  Am.  Eep.  211.  Kor 
is  an  erroneous  statement  of  the  evidence  made  by  counsel  to  the 
jury,  such  error  as  will  warrant  the  granting  of  a  new  trial.  It 
would  be  strange  if  it  was.  It  often  occurs  that  counsel  do  not 
agree  as  to  what  the  testimony  is.  Indeed,  it  rarely  happens  that 
they  do.  It  is  for  the  jury  to  determine  that  question.  People 
v.  Bamhart^  supra. 

The  over  nourished  zeal  of  counsel  displayed  in  attempts  to 
secure  conviction  for  crime,  frequently  calls  for  condemnation  on 
the  part  of  the  appellate  court,  especially  when  in  the  closing 
argument  to  the  jury  the  attorney  for  the  state  travels  outside  the 
evidence  for  his  facts  or  indulges  in  truculent  abuse  of  the  accused. 
A  suggestive  illustration  of  this  error  is  afforded  in  a  case  reported 
in  Colorado  in  18S5.  The  defendant  had  aj)pealed,  alleging  as- 
reversible  error  comments  by  the  state's  attorney  entirely  unwar- 
ranted by  the  evidence,  and  this  despite  the  admonition  of  the 
presiding  judge.  To  such  an  extent  had  this  error  prevaded  the 
record  that  the  Attorney  General,  Hon.  Theodore  H.  Thomas, 
refused  to  present  the  case  and  suggested  that  the  court  should 
set  aside  the  verdict,  which  was  accordingly  done.  Smith  v. 
People,  S  Colo.  457. 

In  the  course  of  an  opinion  delivered  by  the  supreme  court  of 


OPENING    AND    CLOSING   THE   CASE.  185- 

California  in  a  very  remarkable  criminal  case,  this  paragraph  oc- 
curs which  will  be  found  apt  in  this  connection. 

The  conduct  of  the  assistant  district  attorney  in  proposing  to 
read  to  the  jury,  during  his  argument,  a  paper  which  had  not 
been  introduced  in  evidence,  and  in  asserting  that  it  contained 
the  record  of  defendant  from  the  chief  of  police  of  Chicago,  was 
inexcusable  and  reprehensible.  We  think,  however,  that,  so  far 
as  the  defendant's  interests  were  concerned,  no  prejudice  resulted 
from  his  violation  of  professional  duty,  for  it  was  promptly  re- 
buked by  the  court  at  the  time,  and  the  following  instruction  was- 
thereafter  given:  "In  weighing  the  evidence  in  this  case,  it  is 
important  that  you  should  bear  constantly  in  mind  that  statements 
of  fact  made  by  counsel,  whether  in  examination  of  witnesses  or 
in  argument  of  the  facts  so  stated,  are  not  in  proof,  are  not  in 
evidence,  and  are  to  be  discarded  from  your  consideration."  Peo- 
ple v.  Bowers,  79  Cal.  415. 

§  134.  Arguing  from  Facts  not  in  Evidence. — The  para- 
graph last  cited  sufficiently  indicates  that  it  is  error  to  allow  the 
prosecuting  attorney,  against  defendant's  objections,  to  argue  from 
facts  not  in  evidence.  But  if  defendant's  counsel  has,  in  summing 
up,  commented  on  such  facts,  the  court  may  permit  a  reply  of 
like  character.  Abbott,  Trial  Brief,  §  T07,  citing  People  v.  Mit- 
chell, 62  Cal.  411;  Cross  v.  State,  68  Ala.  476;  Ferguson  v.  State, 
49  Ind.  33;  Greene  v.  State,  17  Tex.  App.  395;  Reeves  v.  State,. 
84  Ind.  116;  People  v.  Bush,  68  Cal.  623;  State  v.  Zeabo,89  Mo.  247. 

With  these  exceptions  the  authorities  converge  upon  the  prop- 
osition that  counsel  in  their  arguments  to  the  jury  are  bound  to 
keep  within  the  limits  of  fair  and  temperate  discussion.  The 
range  of  that  discussion  is  circumscribed  by  the  evidence  in  the 
case;  any  violation  of  this  rule  entitles  the  adverse  party  to  an  ex- 
ception which  is  as  potent  to  upset  a  verdict  as  any  other  error 
committed  during  the  trial.  State  v.  Ilannett,  54  Yt.  83;  Gar//'/.:. 
v.  State,  71  Md.  293. 

It  would  be  strange,  indeed,  if  counsel  could  make  any  sort  of 
reckless  assertion  as  to  the  law  applicable  to  a  case  on  trial,  while 
arguing  a  question  of  evidence  to  the  judge,  and  the  latin-  was 
without  authority  to  give  expression  to  his  full  and  emphatic  dis- 
sent from  the  unwarrantable  contention  of  counsel.  This  is  cer- 
tainly the  right  of  a  judge,  and  it  may  often  he  his  imperative- 
duty  to  exercise  that  right  in  a  very  positive  and  emphatic  man- 
ner.     Garlitz  v.  State,  supra. 


CHAPTER  XXIII. 

CHARGING  THE  JURY  ON  THE  EVIDENCE. 

.§  135.  Extreme  Importance  of  the  Subject. 

136.  Prominent  Features  of  the  Charge. 

137.  TJie  Formula  Usually  Adopted. 
13S.  Mistake,  how  Rectified. 

139.  Instances  of  Fatal  Error. 

140.  Instructions  Must  he  Regarded  in  their  Entirely. 

141.  Court  Cannot  Assume  any  Fact  Established  when  there 

is  Conflict. 

142.  Instructions  are  Advisory  in  their  Nature. 

143.  Parties  may  Submit  Requests  to  Charge. 

144.  Instances  of  Harmless  Error. 

145.  The  Conclusion  Reached  as  to  Instructions. 
140.   Power  to  Direct  a  Verdict. 

§  135.  Extreme  Importance  of  the  Subject. — One  of  the 

most  delicate  functions  pertaining  to  the  judicial  state,  is  exercised 
by  the  presiding  judge  in  charging  the  jury  on  the  evidence. 
A  question  of  great  importance  is  always  presented  where 
improper  evidence  has  been  admitted  and  the  judge  seeking  to 
neutralize  its  effect,  instructs  the  jury  to  disregard  it.  Instructions 
of  this  character  are  usually  held  to  cure  the  defeat,  unless  it 
should  clearly  appear  that  the  evidence  erroneously  admitted  was 
of  a  seriously  prejudicial  character.  In  some  jurisdictions  it 
should  be  observed  the  judges  are  prohibited  by  the  organic  law 
from  charging  the  jury  with  respect  to  matters  of  fact,  and  are 
confined  to  the  testimony  elicited  in  the  case,  and  a  statement  of 
the  law  pertinent  to  the  issue;  The  constitutions  of  Tennessee, 
( Jalifornia  and  Nevada  have  this  effect.  North  Carolina,  Georgia 
and  Alabama  have  express  legislation  on  this  subject,  but  none  of 
their  provisions  preclude  the  right  to  charge  in  respect  to  facts 
the  counsel  have  alluded  to  in  their  opening  address  to  the  jury, 
but  in  support  of  which  they  have  failed  to  produce  evidence.  It 
is  equally  pertinent  for  the  court  to  admonish  the  jury  as  to  the 
dangers  of  circumstantial  evidence,  and  to  explain  the  status  of 
negative  testimony.  So,  the  court  may,  within  certain  limitations, 

186 


CHARGING   THE   JURY    ON    THE   EVIDENCE.  1ST 

advise  the  jury  as  to  the  credibility  of  certain  witnesses,  taking 
care  not  to  infringe  upon  the  functions  of  the  jury  in  estimating 
the  degree  of  credit  to  be  accorded  to  the  testimony.  He  may 
inform  the  jury  of  their  right  to  consider  the  general  environment 
of  the  witness,  his  age,  degree  of  intelligence,  relationship  to  the 
party,  apparent  bias,  or  interest  in  the  case.  In  short  the  charge 
should  be  strictly  confined  to  the  evidentiary  matters  as  are  fairly 
within  the  compass  of  the  case.  For  a  further  exposition  of  this 
subject,  the  practitioner  is  referred  to  appropriate  works  on  trial 
practice. 

The  frequency  with  which  criminal  convictions  are  reversed, 
owing  to  the  evidence  of  some  error  in  the  judge's  charge  to  the 
jury  will  abundantly  excuse  a  somewhat  protracted  consideration 
of  this  branch  of  our  subject.  Great  difficulty  has  arisen  in 
many  jurisdictions  because  of  a  slavish  adherence  to  a  formula 
given  in  section  200  of  volume  1  of  Greenleaf  on  Evidence.  This 
instruction  has  been  repeatedly  condemned  and  condemned  with 
emphasis.  The  Indiana  supreme  court,  in  Finch  v.  Bergins,  89 
Ind.  360,  reversed  a  judgment  because  the  court  below  had  given 
an  instruction  adopting  the  very  words  of  Greenleaf  in  the  sec. 
tion  above  mentioned.  And  Howk,  J.,  in  delivering  the  opinion 
of  the  court,  said :  "  Of  this  section  of  Greenleaf's  text,  in  a 
similar  instruction  in  Davis  v.  Hardy,  76  Ind.  272,  this  court 
said :  'To  give  it  in  a  charge,  as  written,  would,  in  this  state,  be 
an  invasion  of  the  jury's  exclusive  right  to  judge  of  the  credibility 
and  weight  of  evidence.  It  is  proper  matter  of  argument  that 
such  evidence  is  subject  to  imperfection  and  discredit,  for  the 
reasons  suggested,  and  the  court  may  direct  the  jury's  attention 
to  the  subject.  But  it  is  not  for  the  court  to  say,  as  matter  of 
law,  in  reference  to  the  evidence  of  this  kind,  given  in  a  particular 
case,  that  it  is  subject  to  much  imperfection,  or  that  "it  frequently 
happens  that  the  witness,  by  unintentionally  altering  a  few  ex- 
pressions really  used  gives  an  effect  to  the  statement  completely 
at  variance  with  what  the  party  did  say;  or  that,  where  'the  ad- 
mission is  deliberately  made  and  precisely  identified,  the  evidence 
is  of  ten  of  the  most  satisfactory  nature.'  These  are  matters  of 
fact,  experience  and  argument,  but  not  otherwise  the  subject  of 
legal  cognizance.' " 

So,  in  Garfield  v.  State,  74  Ind.  60,  in  commenting  en  an 
instruction  transcribed,  like  the  one  above  quoted,  from   t  Green- 


188  LAW    OF    EVIDENCE    IN    CRIMINAL    CASES. 

leaf  on  Evidence,  this  court  said :  "  It  is  not  every  statement  of 
the  law  found  in  a  text-book  or  opinion  of  a  judge,  however  well 
and  accurately  put,  which  can  properly  be  embodied  in  an  instruc- 
tion. .  .  .  The  instruction  under  consideration  does  not  con- 
tain a  single  proposition  of  law,  but  only  declarations  of  supposed 
facts,  which  common  experience  has  perhaps  established  as  true. 
The  teachings  of  experience  on  questions  of  fact  are  not,  however, 
doctrines  of  law,  which  may  be  announced  as  such  from  the 
bench.  .  .  .  They  may  well  enter  into  the  arguments  of 
attorneys,  .  .  .  but  the  jury,  not  the  judge,  is  the  arbitrator 
of  such  contentions.  .  .  .  The  most  that  the  judge  may  do, 
under  our  practice,  which  leaves  questions  of  fact  entirely  to  the 
jury,  is  to  direct  the  attention  of  the  jurors  to  such  propositions 
and  leave  them,  in  the  light  of  their  experience,  to  say  what  credit 
should  be  given  to  any  testimony  on  account  of  its  alleged  doubt- 
ful character." 

In  the  case  of  Woolen  v.  Whitacre,  91  Ind.  502,  it  was  said,  by 
Hammond,  J.:  "  The  decisions  of  this  court  are  numerous  to  the 
effect  that  it  is  error  for  the  court  to  say  or  intimate  to  the  jury 
that  any  circumstance  or  fact  should  be  considered  by  them  to  the 
disparagement  of  a  witness's  testimony."  And  the  rule  above 
indicated  in  Finch  v.  Bergins,  80  Ind.  360,  is  supported  by  Nel- 
son v.  Vorce,  55  Ind.  455;  Pratt  v.  State,  56  Ind.  179;  Millner  v. 
Eglin,  64  Ind.  197,  31  Am.  Rep.  121;  Jachnan  v.  State,  71  Ind. 
14!':    WorJcs  v.  Stevens,  76  Ind.  181. 

§  136.  Prominent  Features  of  the  Charge. — In  charging  the 
jury  it  should  be  the  aim  of  the  court  not  to  give  undue  promi- 
nence to  any  phase  of  fact  which  the  testimony  tends  to  establish. 
If  there  be  apparent  incompleteness  or  weakness  of  proof  on 
any  of  the  controverted  issues  in  the  cause,  counsel  will  usu- 
ally dwell  on  this  in  argument.  But  when  parties  ask  a 
charge  which  isolates  certain  enumerated  facts  and  circumstances, 
real  or  supposed,  and  invoke  the  instruction  of  the  court  on 
these,  as  circumstances  especially  to  be  weighed  in  the  cause,  the 
usual  return  is  to  give  such  facts  and  circumstances  great,  if  not 
undue,  prominence  before  the  jury;  and  if  given,  the  charge 
should  be  circumstances  which  point  to  the  opposite  conclusion. 
Less  than  this  is  apt  to  leave  on  the  minds  of  the  jury  an  impres- 
sion that  the  convictions  of  the  presiding  judge  incline  in  favor  of 
the  party  such  instructions  are  supposed  to  benefit;   and  the  sup- 


CHARGING   THE   JURY    ON   THE    EVIDENCE.  189 

posed  bias  is  none  the  less  patent  and  apparent,  even  though,  in 
giving  such  charge  the  court  adds  :  "  These  circumstances  are  to 
be  considered  with  the  other  evidence  in  the  case."  Durrett  v. 
State,  62  Ala.  441;  and  see  Castro  v.  lilies,  22  Tex.  503,  73  Am. 
Dec.  277;  McCartney  v.  McMullen,  38  111.  240;  Blankenship 
v.  Douglas,  26  Tex.  230;  State  v.  Homes,  17  Mo.  379,  57  Am. 
Dec.  269;  Carroll  v.  Paul,  10  Mo.  241;  State  v.  Ward,  19  Xev. 
297. 

In  charging  the  jury  the  court  must  state  to  them  all  matters 
of  law  which  it  thinks  necessary  for  their  information  in  giving 
their  verdict;  and  must,  if  requested,  in  addition  to  what  it  may 
<leem  its  duty  to  say,  inform  the  jury  that  they  are  the  exclusive 
judges  of  all  questions  of  fact.  People  v.  O'Neill,  112  X.  Y.  363; 
People  v.  Mclnerny,  5  N.  Y.  dim.  Rep.  47;  People  v.  Carpi  nU  r, 
4  K  Y.  Crim.  Rep.  39. 

Comments  upon  the  testimony  so  long  as  the  judge  leaves  all 
the  question  of  fact  to  the  jury  and  instructs  them  that  they  are 
the  sole  judges  of  matters  of  fact  are  not  subjects  of  legal  ex- 
ception. It  is  desirable  that  the  court  should  refrain  as  far  as 
possible  from  saying  anything  to  the  jury  which  may  influence 
them  either  way,  in  passing  upon  controverted  questions  of  fact, 
and  perhaps  comments  on  the  evidence  might  be  carried  so  far  as 
to  afford  ground  for  assigning  error.  Sindram  v.  People,  88  K. 
Y.  196. 

So  it  is  said  that  the  court  is  the  judge  of  the  law,  and  the  jury 
-of  the  fact;  that  is,  it  is  the  duty  of  the  jury  "to  be  governed  by 
the  instructions  of  the  court  as  to  all  legal  questions  involved  in 
such  general  verdicts.  They  have  the  power  to  do  otherwise,  but 
the  exercise  of  such  power  cannot  be  regarded  as  rightful,  although 
the  law  has  provided  no  means,  in  criminal  cases,  of  reviewing 
their  decisions,  whether  of  law  or  fact."  Duffy  v.  People,  26  X. 
Y.  588. 

The  general  question  is  very  elaborately  and  exhaustively  con- 
sidered in  Pierce  v.  State,  13  !N".  H.  536,  and  here  also  the  con- 
clusion is  reached  that  although  the  jury  in  criminal  cases  have 
the  power  to  disregard  the  charge  of  the  court,  it  is,  nevertheless, 
their  duty  to  receive  it  as  the  law  of  the  case.  Habersham  v. 
State,  56  Ga.  61,  note. 

§  137.  The  Formula  Usually  Adopted.— The  formula  usually 
adopted  by  the  trial  court  in  charging  the  jury  is,  'if  from  the 


190  LAW    OF   EVIDENCE    IN    CRIMINAL   CASES. 

evidence  the  jury  believe,  etc.,"  and  there  is  no  merit  in  the  con- 
tention that  such  a  formula  should  be  qualified  by  the  addition  of 
the  words  "to  a  moral  certainty"  or  of  some  equivalent  language. 
If  counsel  for  the  defendant  desired  greater  particularity,  it  is 
within  his  province  to  ask  the  court  to  explain  what  is  meant  by 
the  term  "belief,"  or  rather  that  what  we  term  belief  in  a  crim- 
inal case,  when  applied  to  the  guilt  of  a  defendant,  is  a  conviction 
of  the  mind  to  a  moral  certainty  and  beyond  a  reasonable  doubt. 
People  v.  Sheldon,  6S  Cal.  434.  See  also  Cox  v.  People,  109  111. 
457. 

Judges  may  state  the  testimony  and  declare  the  law,  but  must 
not  express  an  opinion  upon  the  weight  of  the  evidence.  We  are 
una!  ile  to  see  how  the  mere  statement  that  there  is  a  conflict  in 
the  evidence  in  certain  respects  can  be  regarded  as  the  expression 
of  an  opinion  upon  the  weight  of  the  evidence,  or  a  charge  with 
respect  to  matters  of  fact.  In  People  v.  Casey,  65  Cal.  261,  the 
court  instructed  the  jury  that  "the  testimony  in  the  case  shows 
that  the  defendant's,"  etc.  This  was  held  to  be  erroneous  and  the 
court  said:  "To  state  the  testimony  is  one  thing.  To  declare 
what  it  shows  is  another  and  very  different  thing.  It  is  for  the 
jury  exclusively  to  determine  what  the  testimony  shows."  People 
v.  Flynn,  73  Cal.  511. 

In  State  v.  Parker,  61  K  C.  475,  Pearson,  Ch.  J.,  said  that  all 
that  the  law  requires  is,  that  the  jury  shall  be  clearly  instructed 
that  unless,  after  due  consideration  of  all  the  evidence,  they  are 
"fully  satisfied,"  or  "entirely  convinced,"  or  "satisfied  beyond  a 
reasonable  doubt,"  of  the  guilt  of  the  prisoner,  it  is  their  duty  to 
acquit,  and  every  attempt  on  the  part  of  the  court  to  lay  down  a 
"formula,"  for  the  instruction  of  the  jury  by  which  to  "gauge" 
the  degrees  of  conviction  has  resulted  in  no  good.  State  v.  Sears, 
61  X.  C.  146;  State  v.  Knox,  61  K  C.  312;'  Stats  v.  Gee,  92  N. 
('.  T56. 

In  cases  of  homicide  it  is  reversible  error  to  charge  that  the  fact 
of  the  killing  being  admitted  by  the  accused,  the  burden  of  proof 
is  on  him  to  show  that  it  is  not  murder.  The  frequency  with 
which  this  statement  creeps  in  to  the  judge's  charge,  admonishes 
us  to  specific  mention  of  this  error  in  this  immediate  connection. 
Wilson  v.  People,  4  Park.  Crim.  Pep.  619:  People  v.  McCann, 
16  X.  Y.  66,  69  Am.  Dec.  642;  Com.  v.  Hawkins,  3  Gray,  4<;:;: 
People  v.  Robinson,  2  Park.  Crim.  Rep.  235;  1  Hale,  P.  C.  425;. 


CHARGING   THE   JURY    ON   THE   EVIDENCE.  191 

4  Bl.  Com.  198;  3  Coke,  Inst.  47;  1  East,  P.  C.  215;  Penn  v. 
McFaU,  Add.  Eep.  257;  1  Russell,  Crimes,  482,  note;  Com.  v. 
Gross,  1  Ashm.  281;  Com.  v.  Mulatto  Boh,  4  U.  S.  4  Dall.  145, 1 
L.  ed.  776;  Coffee  v.  State,  3  Terg.  283,  24  Am.  Dec.  570;  Dale 
v.  State,  10  Yerg.  551;  Dains  v.  /&«fe,  2  Humph.  439;  Darry  v. 
People,  2  Park.  Crim.  Rep.  606;  Fitzgerrold  v.  People,  37  N.  Y. 
413;  1  Russell,  Crimes,  571;  Sullivan  v.  People,  1  Park.  Crim. 
Rep.  347;  People  v.  67ar&,  7  X.  Y.  3S5;  People  v.  Sullivan,  7 
1ST.  Y.  396;  People  v.  Austin,  1  Park.  Crim.  Rep.  154;  People  v. 
Johnson,  1  Park.  Crim.  Rep.  291;  lA//vy  v.  People,  10  X.  Y.  130; 
Maker  v.  People,  10  Mich.  217;  People  v.  Perry,  8  Abb.  Pr.  X. 
S.  31;  Whiteford  v.  6W.  6  Rand.  (Va.)  725;  /////  v.  Com.  2 
Gratt.  594;  Stark.  Ev.  377;  7V>/^  v-  Divine,  1  Edm.  Sel.  Cas. 
594;  Wynehamer  v.  People,  13  X.  Y.  378;  People  v.  Enoch,  13 
"Wend.  159;  Com.  v.  TPe&sfef,  5  Cush.  305;  Com.  v.  Gardnsr,  11 
Gray,  438;  ifywfe  v.  $fofe,  8  Ohio  St.  98;  Anthony  v.  5Stofe,  1 
Meigs,  265;  Hastings  v.  Bangor  House  Proprs.  18  Me.  436; 
Chrisman  v.  Gregory,  4  B.  Mon.  474. 

The  Oregon  law  provides  that  the  jury  are  to  be  instructed  by 
the  court  on  all  proper  occasions: 

(1)  That  their  power  of  judging  of  the  effect  of  evidence  is  not 
arbitrary,  but  to  be  exercised  with  legal  discretion,  and  in  subor- 
dination to  the  rules  of  evidence; 

(2)  That  they  are  not  bound  to  find  in  conformity  with  the 
declarations  of  any  number  of  witnesses,  which  do  not  produce 
conviction  in  their  minds,  against  a  less  number,  or  against  a  pre- 
sumption or  other  evidence  satisfying  their  minds: 

(3)  That  a  witness  false  in  one  part  of  his  testimony  is  to  be 
distrusted  in  others; 

(4)  That  the  testimony  of  an  accomplice  ought  to  be  viewed 
with  distrust,  and  the  oral  admissions  of  a  party  with  caution; 

(5)  That  in  civil  cases  the  affirmative  of  the  issue  shall  be 
proved,  and  when  the  evidence  is  contradictory,  the  finding  shall 
be  according  to  the  preponderance  of  evidence;  that  in  criminal 
cases  guilt  shall  be  established  beyond  reasonable;  doubt; 

(6)  That  evidence  is  to  be  estimated,  not  only  by  its  own  in- 
trinsic weight,  but  also  according  to  the  evidence  which  it  is  in 
the  power  of  one  side  to  produce  and  of  the  other  to  contradict; 
and  therefore, 

(7)  That  if  the  weaker  and  less  satisfactory  evidence  Is  offered 


192  LAW    OF    EVIDENCE    IN    CRIMINAL    CASES. 

when  it  appears  that  stronger  and  more  satisfactory  was  within 
the  power  of  the  party,  the  evidence  offered  should  be  viewed 
with  distrust.     Hill's  Annotated  Law  of  Oregon,  §  845. 

§  13S.  Mistake  how  Rectified. — When  upon  a  criminal  trial 
the  judge  in  charging  the  jury  lays  down  erroneous  propositions, 
but,  upon  his  attention  being  called  thereto  by  objections,  corrects 
the  misdirections  and  lays  down  the  correct  rule,  no  error  is  pre- 
sented for  review.  But  to  obviate  an  erroneous  instruction  upon 
a  material  point  the  withdrawal  must  be  absolute  and  in  such 
explicit  terms  as  to  preclude  the  inference  that  the  jury  might 
have  been  influenced  thereby.  Greenfield  v.  People,  85  IN".  Y. 
75,  39  Am.  Eep.  636;  Eggler  v.  People,  56  K  Y.  642;  Chapman 
v.  Erie  R.  Co.  55  K  Y.  579. 

§  139.  Instances  of  Fatal  Error. — In  the  case  of  Castleman 
v.  Sherry,  42  Tex.  59,  the  court  said:  "The  charge  is  further 
objectionable  as  being  upon  the  weight  of  the  evidence,  when  the 
court  tells  the  jury  that  evidence  of  the  admissions  of  a  party  is 
regarded  as  dangerous  and  liable  to  abuse,  etc.  Such  expressions 
as  these,  found  in  every  treatise  on  evidence,  are  to  be  regarded 
as  matters  of  argument  rather  than  rules  of  evidence  having  the 
force  of  law,  upon  which  the  court  should  instruct  a  jury."  See 
also  Mauro  v.  Piatt,  62  111.  450. 

It  is  fatal  error  to  instruct  the  jury  that  evidence  of  verbal 
admissions  made  some  time  ago  are  subject  to  imperfection  and 
mistake,  and  should  be  cautiously  received,  because  the  party  may 
not  have  expressed  his  own  meaning,  or  may  have  been  misunder- 
stood, and  the  witness  may  not  give  the  exact  language,  and  there- 
by change  the  meaning;  but  admissions  deliberately  made  against 
interest,  are  well  understood,  are  entitled  to  consideration;  never- 
theless the  jury  are  the  exclusive  judges  of  the  weight  of  the  evi- 
dence.    Shorb  v.  Kinzie,  100  Ind.  429. 

A  charge  which  instructs  the  jury  that,  if  the  evidence  is  sus- 
ceptible of  two  reasonable  constructions,  one  of  which  is  consistent 
with  the  defendant's  innocence,  it  is  their  duty  to  adopt  that  con- 
struction, is  calculated  to  confuse  and  mislead,  and  is  properly 
refused.     Gibson  v.  State,  91  Ala.  64. 

In  Densmore  v.  State,  67  Ind.  308,  the  court  charged  the  jury 
that  '"what  is  commonly  called  common  sense  is  perhaps  the  ju- 
rors' best  guide  in  those  particulars."  This  was  held  erroneous, 
the  court  saying :     "JSow,  while  common  sense  is  a  very  desirable 


CHARGING    THE    JURY    ON    THE    EVIDENCE.  193 

and  admirable  quality  in  a  man,  and  exceedingly  useful  in  all  the 
practical  affairs  of  life,  including  the  duties  of  jurors,  we  do  not 
see  how  it  can  be  a  better  guide  to  them  in  the  discharge  of  those 
duties  than  the  rules  of  law.  Indeed,  the  rules  of  law  are  gener- 
ally the  condensed  common  sense  of  ages.  But  the  common 
sense  of  twelve  jurors  would  not  be  likely  to  be  all  alike.  What 
one  might  regard  as  the  common  sense  view  of  a  question,  another 
might  think  utterly  destitute  of  common  sense.  If  each  juror 
were  to  act  upon  his  common  sense  instead  of  the  rules  of  law, 
there  would  be  as  many  different  opinions  as  there  were  jurors. 
With  each  juror  acting  upon  his  own  common  sense  instead  of 
the  rules  of  law,  we  might  expect  a  verdict  in  accordance  with 
the  law  'when  everlasting  fate  shall  yield  to  fickle  chance  and 
chaos  judge  the  strife.'  "  To  the  same  effect,  Wright  v.  State,  69 
Ind.  165;  Anderson  v.  State,  41  Wis.  430,  434;  Meyers  v.  Com.  83 
Pa.  142;  People  v.  Ah  Sing,  51  Cal.  372. 

A  charge  which  selects  and  gives  undue  prominence  to  particu- 
lar portions  of  the  evidence,  to  the  exclusion  of  other  material 
portions,  is  properly  refused;  as,  where  it  asserts  that  the  failure 
to  prove  any  motive  for  the  crime,  or  the  proof  of  friendly  rela- 
tions between  the  defendant  and  the  deceased,  "is  a  strong  cir- 
cumstance in  favor  of  the  defendant's  innocence."  Goley  v. 
State,  85  Ala.  333. 

So  it  is  error  to  refuse  to  charge  that,  if  there  is  apparent  con- 
flict in  the  evidence,  it  is  the  dut}T  of  the  jury  to  reconcile  it  if 
they  can,  and  not  impute  perjury  to  any  witness.  Rickerson  v. 
State,  78  Ga,  15. 

It  is  error  for  the  court  to  refuse  to  charge  the  jury  that  if  the 
evidence  shows  that  at  the  time  of  committing  the  act  the  accused 
was  in  a  state  of  intoxication,  the  jury  must  consider  that  fact, 
and  that  condition  as  bearing  upon  the  question  of  premeditation, 
and  showing  the  absence  of  deliberation  in  the  act.  Haile,  v. 
State,  11  Humph.  154;  Com.  v.  Jones,  1  Leigh,  598;  Pirtie 
v.  State,  9  Humph.  663;  Sivan  v.  State,  4  Humph.  136;  Boswell 
v.  Com.  20  Gratt.  860;  Lancaster  v.  State,  2  Lea,  575;  Sehlencker 
v.  State,  9  Neb.  241;  People  v.  Rogers,  18  K  Y.  9,  72  Am.  Dec. 
484;  People  v.  Belencia,  21  Cal.  544;  Ferrell  v.  State,  43  Tex. 
503;  Colhath  v.  State,  2  Tex.  App.  391;  Whart.  Homicide,  §  587; 
Com.  v.  Dorsey,  103  Mass.  412;  Kelly  v.  Com.  1  Grant  Cas.  484; 
Keenan  v.  Com.  44  Pa.  55,  84  Am.  Dec.  414;  Jones  v.  Com.  75 
13 


194:  LAW    OF   EVIDENCE    IN    CRIMINAL   CASES. 

Pa.  403;  State  v.  Johnson,  40  Conn.  136;  People  v.  Williams,  43 
Cal.  344;  Pigman  v.  State,  14  Ohio,  555,  45  Am.  Dec.  558;  Peo- 
ple v.  Ferris,  55  Cal.  588;  People  v.  Harris,  29  Cal.  678;  People 
v.  Batting,  49  How.  Pr.  392;  Flanigan  v.  People,  86  N.  Y.  554,. 
40  Am.  Kep.  556. 

A  general  rule  of  wide  acceptance  is  to  the  effect  that  a  court 
should  not  give  a  jury  such  instructions  as  to  prevent  them  from 
exercising  their  own  judgment  and  deciding  for  themselves.  New- 
York  F.  Ins.  Co.  v.  Walden,  12  Johns.  513;  Bulkeley  v.  Ketel- 
tas,  4  Sandf.  450,  6  K  T.  384;  People  v.  Wiley,  3  Hill,  194; 
People  v.  Quin,  1  Park.  Crim.  Rep.  340;  Pfomer  v.  People,  4 
Park.  Crim.  Rep.  588;  Breen  v.  People,  4  Park.  Crim.  Rep.  380;. 
Fitzgerrold  v.  People,  37  K  Y.  413. 

In  a  larceny  case  an  instruction  invades  the  jury's  province 
which  charges  that  if  the  defendant  denied  having  in  his  posses- 
sion goods  which  had  been  stolen,  and  such  goods  were  found  in 
his  possession  immediately  after  his  denial,  and  he  failed  to  ex- 
plain such  possession,  these  facts  were  sufficient  to  sustain  a  con- 
viction.    Blankenship  v.  State,  55  Ark.  244. 

§  140.  Instructions  Must  be  Regarded  in  their  Entirety. — 
Although  an  instruction,  considered  by  itself,  is  too  general,  yet 
if  it  is  properly  limited  by  others  given  on  the  other  side,  so  that 
it  is  not  probable  it  could  have  misled  the  jury,,  judgment  will  not 
be  reversed  on  account  of  such  instruction.  Kendall  v.  Brown, 
86  111.  387;  Skiles  v.  Caruthers,  88  111.  458. 

The  supreme  court  of  Iowa  has  said :  "It  is  usually  not  practi- 
cable, in  any  one  instruction,  to  present  all  the  limitations  and 
restrictions  of  which  it  is  susceptible.  These  very  frequently 
must  be  presented  in  other  and  distinct  portions  of  the  ch'arge. 
The  charge  must  be  taken  together,  and  if,  when  so  considered,, 
it  fairly  presents  the  law  and  is  not  liable  to  misapprehension  nor 
calculated  to  mislead,  a  cause  should  not  be  reversed,  simply  be- 
cause some  one  of  the  instructions  may  lay  down  the  law  without 
sufficient  qualification."     Pice  v.  Pes  Moines,  40  Iowa,  638. 

The  same  court  held  in  a  criminal  case,  where  the  indictment 
was  for  murder,  that  "instructions  are  all  to  be  considered  and 
construed  together,"  and  that  an  omission  to  state  the  law  fully  in 
one  instruction,  when  the  omission  is  fully  supplied  in  another, 
does  not  constitute  error.     State  v.  Maloy,  44  Iowa,  104. 

The   supreme   court   of   California   said,  in   a  criminal   case; 


t  CHARGING   THE   JURY    ON   THE   EVIDENCE.  195 

"While  some  of  the  instructions  are  perhaps  subject  to  criticism 
and  may  not  state  the  law  with  precise  accuracy,  yet,  taken  as  a 
whole,  they  were  substantially  correct  and  could  not  have  misled 
the  jury  to  the  prejudice  of  the  defendant."  Peojple  v.  Cleve- 
land, 49  Cal.  577.  The  principle  here  announced,  that  an  instruc- 
tion, which  is  general  in  its  character,  may  be  limited  or  qualified 
by  other  instructions  in  the  series,  does  not  contravene  the  rule, 
that  in  a  criminal  case  "material  error  in  one  instruction  calcu- 
lated to  mislead  is  not  cured  by  a  subsequent  contradictory  in- 
struction." Whart.  Crim.  PL  &  Pr.  (8th  ed.)  §  793.  Notwith- 
standing this,  as  was  said  in  the  case  of  McDermott  v.  State, 
89  Ind.  187,  "The  instruction  should  not  be  dissected  and  sepa- 
rated. It  must  be  considered  as  a  whole.  If  an  instruction  may 
be  separated  into  fractional  parts,  so  that  one  portion  may  not 
limit  and  qualify,  or  extend  and  explain  another  portion,  it  will 
be  difficult,  if  not  impossible,  to  form  an  instruction  that  will 
stand  such  an  examination  and  criticism.  In  thus  separating  into 
parts,  the  sense  may  be  twisted  and  tortured  so  that  the  most  cor- 
rect may  appear  to  be  the  most  faulty  instruction."  See  also 
Nicoles  v.  Calvert,  96  Ind.  310;  Wright  v.  Pansier,  90  Ind.  492; 
Story  v.  State,  99  Ind.  413. 

§  141.  Court  Cannot  Assume  any  Fact  Established  when 
there  is  Conflict. — It  is  the  settled  law  that  where  there  is  any 
conflict  in  the  evidence  as  to  the  existence  of  any  fact  in  the  case, 
the  court  can  not,  in  charging  the  jury,  assume  that  such  fact  has, 
or  has  not  been  established.  This  would  be  an  invasion  of  the 
province  of  the  jury.  This  is  the  ruling  in  the  case  of  Finch  v. 
Bergins,  89  Ind.  360.  But  where  the  existence  of  a  fact  is  estab- 
lished by  the  evidence  without  any  conflict,  contradiction  or  dis- 
pute whatever,  it  is  not  an  available  error  for  the  court  to  instruct 
the  jury  that  there  is  evidence  tending  to  prove  such  fact.  See 
the  following  authorities :  Carver  v.  Carver,  97  Ind.  497;  Ilaz- 
zard  v.  Citizens  State  Bank,  72  Ind.  130;  Moss  v.  Witness  Print- 
ing Co.  64  Ind.  125;  Bodge  v.  Gaylord,  53  Ind.  365;  American 
Ins.  Co.  of  Chicago  v.  Butler,  70  Ind.  1;  Adams  v.  Kennedy,  90 
Ind.  318;  Steinmetz  v.  Wingate,  42  Ind.  574;  JFynds  v.  Hays,  25 
Ind.  31;  Porter  v.  Millard,  18  Ind.  502;  State  Bank  v.  Hays,  3 
Ind.  400;  Crookshank  v.  Kellogg,  8  Blackf.  256;  Nixon  v.  Brown, 
4  Blackf.  157;  Governor  v.  Shelly,  2  Blackf.  26;  Hughes  \. 
Monty,  24  Iowa,  499;  Miller  v.  Kirhy,  74  111.  242;  Ileartt  v. 
Bhodes,  GG  111.  351;  Ilanrahan  v.  People,  91  111.  142. 


196  LAW    OF    EVIDENCE    IN    CRIMINAL   CASES. 

Judge  Thompson,  in  his  work  on  "  Charging  the  Jury,"  at  page 
71,  says :  "  But  whilst  it  is  improper  for  the  judge  to  assume 
the  existence  of  a  fact  in  issue,  yet,  where  the  evidence  is  clear 
and  conclusive  as  to  the  existence  of  the  particular  fact,  and  there 
is  no  evidence  to  the  contrary,  an  instruction,  assuming  it  as  true, 
will  not  work  a  reversal  of  the  judgment."  This  is  a  very  good 
summary  of  the  doctrine  of  the  cases  above  cited.  Koerner  v. 
State,  98  Ind.  7. 

In  the  case  of  Sindram  v.  People,  88  N.  Y.  196,  Judge  Rapallo 
said:  "Comments  upon  the  testimony,  so  long  as  the  judge 
leaves  all  the  questions  of  fact  to  the  jury,  and  instructs  them 
that  the  sole  judges  of  matters  of  fact,  are  not  the  subjects  of 
legal  exception.  It  is  desirable  that  the  court  should  refrain,  as 
far  as  possible,  from  saying  anything  to  the  jury  which  may  influ- 
ence them  either  way  in  passing  upon  controverted  questions  of 
fact,  and  perhaps  comments  on  the  evidence  might  be  carried  so 
far  as  to  afford  ground  for  assigning  error.  But  in  the  present 
case,  whenever  its  attention  was  called  by  the  prisoner's  counsel 
to  any  part  of  the  charge  which  he  considered  as  an  infringement 
upon  the  province  of  the  jury,  the  court  promptly  and  clearly 
withdrew  the  remarks  objected  to,  and  emphatically  reminded 
the  jury  that  they  alone  had  the  right  to  determine  the  facts." 

§  112.  Instructions  are  Advisory  in  their  Nature. — The 
jury  being  the  judges  of  the  law  and  the  facts  in  criminal  cases, 
the  instructions  of  the  court  are  merely  advisory,  and  not  oblig- 
atory. Nuzum  v.  State,  88  Ind.  599;  McDonald  v.  State,  63 
Ind.  511;  Keiser  v.  State,  S3  Ind.  231;  Fowler  v.  State,  85  Ind. 
538. 

In  the  case  of  State  v.  Bank's,  18  Ind.  197,  the  court  instructed 
the  jury,  under  the  facts,  to  return  a  verdict  of  not  guilty.  It  is 
said  by  the  supreme  court,  in  affirmance  of  that  case,  that,  "A 
c(  >urt,  in  charging  a  jury,  has  no  right  to  assume  the  guilt  of  the 
accused,  or  that  a  fact  has  or  has  not  been  proved,  or  to  express 
any  opinion  or  manifest  a  leaning  upon  evidence  which  would  be 
submitted  to  the  jury;  but  when  there  is  no  evidence,  or  none 
upon  a  particular  point,  upon  which  a  conviction  could  be  based, 
the  court  has  a  right  to  say  so,  and  direct  the  jury  to  iind  the 
defendant  not  guilty." 

On  a  trial  for  murder,  where  the  evidence  against  the  defend- 
ant is  circumstantial,  the  jury  should  be  advised  that  casual  state- 


CHARGING    THE    JURY    ON    THE    EVIDENCE.  197 

ments  made  by  the  defendant,  in  the  course  of  ordinary  conver- 
sation, concerning  the  death  of  the  deceased,  should  be  considered 
with  great  caution.     State  v.  Moxley,  102  Mo.  374. 

So  where  the  evidence  not  only  contained  no  suggestion  of  any 
provocation,  or  other  mitigating  circumstances,  or  that  the  killing 
was  accidental,  but  affirmatively  negatived  any  such  hypothesis,  it 
is  not  error  for  the  court  to  advise  the  jury  that  no  degree  of 
manslaughter,  and  no  degree  of  murder,  except  murder  in  the 
first  degree,  was  applicable  to  the  case;  that,  if  they  were  satisfied 
beyond  a  reasonable  doubt  that  the  defendant  killed  the  deceased 
with  a  premeditated  design  to  effect  his  death,  they  must  find 
him  guilty  of  murder  in  the  first  degree;  but  that,  if  they  were 
not  so  satisfied  beyond  a  reasonable  doubt,  they  must  acquit  him. 
State  v.  Lentz,  45  Minn.  177. 

§  143.  Parties  may  Submit  Requests  to  Charge. — If  evi- 
dence has  been  received  as  proper  for  one  purpose,  although  not 
for  another — for  instance,  evidence  of  another  offense,  received 
to  show  knowledge  or  intent — the  party  affected  has  a  right  to  an 
instruction,  that  the  jury  must  consider  it  only  as  bearing  on  the 
question  in  reference  to  which  it  was  properly  received.  Abbott, 
Trial  Brief,  §  791,  citing  Therasson  v.  People,  82  K  Y.  238; 
People  v.  Gray,  GO  Cal.  271;  Jones  v.  State,  14  Tex.  App.  85; 
Holmes  v.  State,  20  Tex.  App.  509;  Coleman  v.  People,  55  X.  Y. 
81;  Boyle  v.  State,  105  Ind.  409,  55  Am.  Rep.  21S. 

When  the  instructions  of  the  court  are  unexceptionable  as  to 
the  offense  charged  and  for  which  the  prisoner  is  on  trial,  and 
such  instructions  cover  every  element  of  the  crime,  and  correct 
rules  for  the  proper  application  of  the  evidence,  it  is  not  strictly 
the  right  of  a  prisoner  to  ask  instructions  upon  a  hypothetical 
case,  based  upon  other  facts.     Slatterly  v.  People,  58  N.  Y.  354. 

Where  the  jury  have  been  properly  instructed,  the  judge  may 
refuse  to  entertain  any  further  application  to  charge  them  {Moody 
v.  Osgood,  54  N.  Y.  488)  and  he  is  under  no  obligation  to  sub- 
mit abstract  propositions  of  law  for  their  consideration. 

"  The  refusal  to  charge  the  requests,  in  respect  to  the  credi- 
bility of  the  two  detectives,  or  informers,  was  not  error,  for  the 
reason  that  one  of  the  requests  was  to  charge  that  they  were 
accomplices,  and  the  other  assumed  that  they  were  such."  The 
testimony  of  such  witnesses  should  be  viewed  with  caution, — and 
even  distrust;  but  it  is,  after  all,  a  question  for  the  jury,  whether 
they  shall  be  believed.     Com.  v.  Downing,  4  Gray,  29. 


198  LAW    OF    EVIDENCE   IN    CRIMINAL   CASES. 

A  judge  is  not  bound  to  repeat  his  charge,  nor  is  he  bound  to 
adopt  the  exact  language  of  counsel  in  their  request  to  charge. 
Tucker  v.  Ely,  37  Hun,  565;  O'Connell  v.  People,  VI  K  Y.  377; 
Moett  v.  People,  85  N.  Y.  373;  Raymond  v.  Richmond,  88  N". 
Y.  671.  And  he  may  properly  refuse  to  give  instructions  asked 
after  the  argument  has  commenced.    Surber  v.  State,  99  Ind.  71. 

§  144.  Instances  of  Harmless  Error. — The  rule  is  firmly 
established  that  if,  upon  considering  all  the  instructions  together, 
it  fairly  appears  that  the  law  was  stated  with  substantial  accuracy, 
so  that  the  jury  could  not  have  been  misled,  no  ground  for 
reversal  is  presented,  even  though  a  particular  instruction,  or  some 
detached  portion  thereof,  may  not  be  precisely  accurate.  Cooper 
v.  State,  120  Ind.  377. 

The  same  reasoning  that  applies  to  a  harmless  error  in  an 
instruction  is  equally  available  as  regards  any  error  that  is  mani- 
festly without  prejudice  to  the  accused.  All  arguments  upon 
this  proposition  converge  upon  the  same  conclusion.  Armstrong 
v.  Tait,  8  Ala.  635;  O'Callaghan  v.  Bode,  84  Cal.  489;  Klimple 
v.  Boelter,  44  Minn.  172;  West  v.  Camden,  135  U.  S.  507,  34  L. 
ed.  254;  Hogshead  v.  State,  120  Ind.  327;  Cooper  v.  State,  supra; 
Whidden  v.  Seelye,  40  Me.  247,  63  Am.  Dec.  661;  Staser  v.  Ho- 
gan,  120  Ind.  207;  Walters  v.  Jordan,  35  K  C.  361;  Atkinson 
v.  Bailey,  107  111.  117;  Copeland  v.  Koontz,  125  Ind.  126;  Bos- 
ley  v.  CJiesapeake  Ins.  Co.  3  Gill  &  J.  450;  Jones  v.  Angell,  9#5 
Ind.  376;  Johnson  v.  Evans,  8  Gill,  155,  Ricketts  v.  Harvey,  106 
Ind.  564;  Sawyer  v.  Chicago  &  N.  W.  R.  Co.  22  Wis.  403;  Zach- 
ary  v.  Pace,  9  Ark.  212,  47  Am.  Dec.  744;  Hovey  v.  Chase,  52 
Me.  304,  83  Am.  Dec.  514;  Lackawanna  dc  B.  R.  Co.  v.  Doalc, 
52  Fa.  379;    Worley  v.  Moore,  97  Ind.  15. 

§  145.  The  Conclusion  Reached  as  to  Instructions. — Sum- 
marizing the  conclusions  of  eminent  authority,  we  may  appropri- 
ately refer  to  the  case  of  Com.  v.  Self  ridge,  Har.  &  T.  2,  de- 
cided in  1S06.  Ch.  J.  Parker  in  summing  up  the  evidence  and  in- 
structing  the  jury,  makes  use  of  the  following  expressive  language: 

"I  hold  the  privilege  of  the  jury  to  ascertain  the  facts,  and  that 
of  the  court  to  declare  the  law,  to  be  distinct  and  independent. 
Should  I  interfere  with  my  opinion  on  the  testimony,  in  order  to 
influence  your  minds  to  incline  either  way,  I  should  certainly  step 
out  of  the  province  of  the  judge  into  that  of  an  advocate.  All 
which  I  conceive  necessary  or  proper  for  one  to  do  in  this  part  of 


CHARGING   THE   JURY    OX   THE   EVIDENCE.  199 

the  cause  is,  to  call  your  attention  to  points  of  facts  on  which  the 
cause  may  turn,  state  the  prominent  testimony  in  the  case  which 
may  tend  to  establish  or  disprove  those  points,  give  you  some 
rules  by  which  you  are  to  weigh  testimony,  if  a  contrariety  should 
have  occurred,  and  leave  you  to  form  a  decision  according  to  your 
best  judgment,  without  giving  you  to  understand,  if  it  can  be 
avoided,  what  my  opinion  of  the  subject  is." 

Eighty  years  later  the  same  principle  was  reasserted  by  the 
supreme  court  of  Mississippi  in  the  following  language:  "It  has 
been  correctly  laid  down,  by  authority,  that  the  court  is  bound  to 
instruct  the  jury  on  all  the  points  pertinent  to  the  case.  The 
responsibility  of  a  correct  announcement  of  the  law  is  upon  the 
court.  It  would  seem  to  follow,  therefore,  if  the  requests  to 
charge  do  not,  in  the  opinion  of  the  judge,  correctly  state  the  law 
applicable  to  the  case,  that  he  ought  to  so  modify  them  as  to  make 
them  conform  to  the  law."      White  v.  State,  52  Miss.  216. 

§  146.  Power  to  Direct  a  Verdict. — The  trial  court  has  not 
the  power  to  direct  a  verdict  of  guilty,  even  though  the  evidence 
of  guilt  be  overwhelming,  and  the  question  of  guilt  or  innocence 
depends  wholly  upon  a  question  of  law.  The  contrary,  however, 
was  held  in  a  case  where  the  facts  constituting  guilt  were  undis- 
puted. On  the  other  hand,  the  trial  being  in  progress,  the  court 
cannot  discharge  the  prisoner  on  the  ground  that  the  corpus 
delicti  has  not  been  proved;  but  a  question  of  law  only  being  pre- 
sented, may  instruct  the  jury  to  acquit,  and  a  refusal  so  to  instruct 
is  error.  But  such  an  instruction  should  only  be  given  where 
there  is  no  evidence  tending  to  prove  the  offense  charged.  In 
the  Federal  courts  it  is  not  the  practice  to  direct  a  specific  verdict, 
but  rather  to  instruct  the  jury  upon  the  law  as  to  the  competency 
of  the  evidence,  and  leave  it  to  them  to  find  their  verdict  accord- 
ingly. Bapalje,  Crim.  Proc.  §  376,  citing  Tucker  v.  State,  57  Ga. 
503;  United  States  v.  Taylor,  3  McCrary,  500,  3  Crim.  L.  Mag. 
552;  United  States  v.  Anthony,  11  Blatchf.  200;  People  v.  Ben- 
nett, 49  1ST.  Y.  137;  State  v.  Warner,  74  Mo.  S3;  United  States  v. 
Walsh,  22  Fed.  Bep.  644. 

"Where,  on  the  trial  of  an  indictment,  the  facts  in  evidence  are 
admitted  or  undisputed,  and  are  insufficient  to  establish  that  the 
offense  charged  has  been  committed  by  the  defendant,  it  is  the 
duty  of  the  court,  on  request  therefor,  to  direct  the  jury  to  return 
a  verdict  of  not  guilty.     Com.  v.  Ruddle,  142  Pa.  144. 


CHAPTER   XXIV. 

EVIDENCE  OF  PREJUDICIAL  JURY. 

§  147.  Accused  is  Entitled  to  Fair  and  Impartial  Jury. 

148.  Mere  Abstract  Opinion  of  Guilt  no  Ground  for  Objection, 

149.  TJie  Test  of  Competency. 

150.  Wlien  the  Objection  Should  be  Regarded. 

151.  Irregularity  of  the  Grand  Jury  May  be  Shown. 

152.  Evidence  in  Support  of  Verdict. 

§  147.  Accused  is  Entitled  to  Fair  and  Impartial  Jury. — 

A  frequent  objection  obtruded,  upon  the  trial  of  a  criminal  case,, 
relates  to  the  prejudice  or  bias  of  the  individual  members  com- 
posing the  jury.  Evidence  is  produced  which  tends  to  establish 
the  fact  that  some  individual  who  sat  in  the  jury  box  approached 
the  consideration  of  the  case  under  circumstances  that  prevented 
him  from  being  influenced  solely  by  the  evidence  adduced.  This 
objection  is  an  important  one,  especially  where  the  life  of  the 
accused  is  concerned ;  as  no  privilege  is  more  important  to  the 
citizen,  than  that  of  having  the  issues  made,  tried  and  determined 
by  a  fair,  competent  and  disinterested  jury,  standing  impartially 
between  himself  and  his  accusers. 

§  148.  Mere  Abstract  Opinion  of  Guilt  no  Ground  for  Ob- 
jection.— This  entire  subject  has  received  the  critical  attention  of 
the  Xew  York  court  of  appeals  in  a  very  recent  case ;  and  Chief 
Justice  linger  in  delivering  the  opinion  of  the  court  has  left  little 
that  can  be  said  upon  the  subject.  In  People  v.  Carpenter,  102 
X.  Y.  238,  the  evidence  shows  that  one  of  the  jurymen  testifying 
as  to  his  competency  to  sit  in  the  case,  said  :  "My  mind  is  prac- 
tically clear  and  unbiased  as  between  the  people  and  this  prisoner. 
I  have  no  opinion  now  as  to  the  guilt  or  innocence  of  the  defend- 
ant. If  the  defense  of  insanity  was  interposed,  I  would  have  a 
prejudice  against  it.  My  answer  only  implies  that  I  believe  the 
defense  of  insanity  has  been  misused  and  abused  and  I  am  not 
prejudiced  against  a  person  who  is  insane.  It  is  a  prejudice 
against  sham  defenses.  I  don't  think  that  feeling  would  control 
or  influence  my  judgment  against  the  defense  of  insanity."     The 

200 


EVIDENCE    OF    PREJUDICIAL   JUET.  201 

juror  was  held  competent.  Cora.  v.  JBuzzell,  16  Pick.  160;  Com, 
v.  Porter,  4  Gray,  423. 

The  existence  of  a  mere  abstract  opinion  in  which  no  element 
of  malice  or  unreasoning  prejudice  enters,  can  certainly  form  no- 
just  ground  for  the  rejection  of  a  juror,  even  where  he  admits 
that  the  defense  of  insanity,  owing  to  its  gross  abuse,  would  raise 
some  feeling  of  hostility  to  the  accused.  If  the  evidence  shows, 
that  notwithstanding  this  feeling  against  this  defense,  the  juror 
can  still  be  guided  to  his  verdict  by  the  testimony  in  the  case, 
uninfluenced  by  any  feeling  of  bias,  he  is  competent  as  a  juror. 

The  end  sought  by  the  common  law  was  to  secure  a  panel  that 
would  impartially  hear  the  evidence  and  render  a  verdict  thereon 
uninfluenced  by  any  extraneous  considerations  whatever.  If  the 
person  proposed  as  a  juror  can  and  will  do  this,  the  entire  pur- 
pose is  accomplished.  To  secure  this  the  statute  requires  that 
he  shall  make  oath  that  he  can  do  this,  irrespective  of  any  previ- 
ous or  existing  opinion  or  impression.  Not  satisfied  that  this 
may  be  safely  relied  upon,  on  account  of  the  difficulty  of  deter- 
mining by  a  person  having  an  opinion  or  impression  how  far  he 
may  be  unconsciously  influenced  thereby,  the  statute  goes  further 
and  provides  that  the  court  shall  be  satisfied  that  the  person  pro- 
posed as  a  juror  does  not  entertain  such  a  present  opinion  as 
would  influence  his  verdict  as  a  juror.  Surely  this  latter  provis- 
ion, if  rightly  and  intelligently  administered  by  a  competent  court,, 
will  afford  protection  to  the  accused  from  injury  from  a  partial 
jury.     Stokes  v.  People,^  N".  Y.  164,  13  Am.  Rep.  493. 

On  a  question  of  actual  bias  even  slight  evidence  is  admissible. 
People  v.  Bodine,  1  Demo,  281,  307. 

The  object  of  the  inquiry  is  the  state  of  mind  of  the  proposed 
juror,  and  that  state  must  be  such,  in  order  to  make  him  compe- 
tent, as  will  lead  to  the  inference  that  he  will  act  with  entire  im- 
partiality. May  v.  Elam,  27  Iowa,  365.  The  leading  and  must 
recent  case  is  People  v. Casey,  96  1ST.  Y.  115,  2  N.  Y.  Crim.  lie}). 
194. 

§149.  The  Test  of  Competency. — The  test  of  the  compe- 
tency of  a  juror  in  a  capital  case  is  his  ability  to  render  a  verdict 
upon  the  evidence,  and  upon  the  evidence  alone,  uninfluenced  by 
any  opinion  which  he  may  have  previously  formed  from  news- 
paper or  other  reports  of  the  crime.  Pizzolo  v.  Coin.  L26  Pa.  54. 
That  case  followed  directly  in  the  line  of  Staup  v.  Com.   71  Pa. 


202  LAW   OF   EVIDENCE   IN   CRIMINAL   CASES. 

458;  (P Mara  v.  Com.  75  Pa.  424;  Ortwein  v.  Com.  76  Pa.  414, 
18  Am.  Kep.  420;  Allison  v.  Com.  99  Pa.  32;  Clark  v.  CW.  123 
Pa.  558. 

In  Allison  v.  Com.  99  Pa.  32,  it  was  held  that  where  a  juror 
in  a  criminal  case  h^s  formed  an  opinion  from  hearing  or  reading 
the  evidence  upon  a  former  trial,  he  is  incompetent,  even  if  his 
opinion  thus  formed  does  not  come  up  to  the  standard  of  a  fixed 
opinion.  But  this  rule  does  not  apply  where  the  juror  has  heard 
or  read  only  fragmentary  portions  of  the  evidence;  on  the  con- 
trary, his  opinion  must  have  been  formed  upon  all  the  evidence 
in  a  former  trial  against  the  same  prisoner,  before  the  disqualifi- 
cation referred  to  attaches;  and  it  was  distinctly  ruled  that  the 
hearing  or  reading  the  evidence  upon  a  preliminary  examination 
before  a  coroner  or  committing  magistrate,  was  not  a  trial  within 
the  meaning  of  this  rule.  We  need  not  discuss  this  question  fur- 
ther. It  is  worn  threadbare,  and  the  law  ought  now  to  be  well 
understood.     Com.  v.  Taylor,  129  Pa.  534. 

In  Staup  v.  Com.  supra,  it  was  laid  down  as  a  primary  rule, 
that  a  juror  who  had  read  the  evidence  taken  on  a  former  trial 
and  had  formed  an  opinion  from  what  he  read  that  was  fixed, 
deliberately  formed  and  still  entertained,  was  not  a  competent 
juror.  In  O'Mara  v.  Com.  supra,  the  rule  stated  was  affirmed 
with  the  addition  that  where  the  juror's  "opinion  of  the  prisoner's 
guilt  has  become  a  fixed  belief,  it  would  be  wrong  to  receive  him." 
Ortwein  v.  Com.  supra,  followed,  affirming  all  that  was  decided 
in  the  two  former  cases.  The  court  then  formulated  and  laid 
down  the  rules  touching  the  competency  of  jurors  in  Allison  v. 
Com.  supra,  and  ruled:  "Where  the  juror  entertains  a  fixed  or 
deliberate  opinion,  no  matter  how  formed,  of  the  prisoners  guilt, 
he  is  incompetent,  and  his  belief  that  he  can  try  the  prisoner  im- 
partially will  not  remove  the  disqualification." 

In  our  present  state  of  society,  all  that  can  be  required  of  a 
juror,  to  render  him  competent,  is,  that  he  shall  be  without  bias, 
or  prejudice  for  or  against  the  accused,  and  that  his  mind  is  free 
to  hear  and  impartially  consider  the  evidence,  and  to  render  a 
verdict  thereon  without  regard  to  any  former  orjinion  or  impres- 
sion existing  in  his  mind,  formed  upon  rumor  or  newspaper  re- 
ports. Whenever  it  is  shown  that  such  is  the  state  of  mind  of  the 
juror,  he  should  be  held  to  be  competent;  and  such  is  the  rule  as 
laid  down  in   Waters  v.  State,  51  Md.  430.     In  that  case  it  was 


EVIDENCE    OF    PREJUDICIAL   JURY.  203 

said  "that  the  opinion  which  should  exclude  a  juror  must  be  a 
fixed  and  deliberate  one,  partaking  in  fact  of  the  nature  of  a  pre- 
judgment." 

§  150.  When  the  Objection  Should  he  Regarded. — Where 
the  evidence  clearly  shows  that  the  objection  raised  is  vital  in  its 
character,  and  is  not  referred  to  a  mere  matter  of  trivialty  or  de- 
tail, but  strikes  at  the  foundation  of  the  organization  of  the  jury 
panel  as  where  the  proof  elicited  shows  the  facts,  that  too  many 
or  too  few  persons  composed  the  jury,  or  that  the  public  officials 
failed  to  perform  their  duty  by  omitting  to  make  any  selection  or 
list  of  names  as  is  required  by  law;  or  to  properly  draw  or  sum- 
mon any  or  all  of  the  panel  from  the  names  selected — such  evi- 
dence discloses  fatal  defect  in  the  composition  of  the  jury,  and 
is  pertinent  as  showing  the  invalidity  of  any  indictment  found  by 
them.  Barney  v.  State,  12  Smedes  &  M.  68;  Stokes  v.  State.  24 
Miss.  621;  Finley  v.  State,  61  Ala.  201;  Fitzgerald  v.  State,  4 
Wis.  395;  Boyle  v.  State,  17  Ohio,  222;  Low's  Case,  4  Me.  439; 
People  v.  King,  2  Cai.  98;  McCloskey  v.  People,  5  Park.  Crim. 
Kep.  30S;  State  v.  Bryce,  11  S.  C.  342;  People  v.  Thurston,  5 
Cal.  69;  Com.  v.  Cherry,  2  Ya.  Cas.  20;  Com.  v.  St.  Clan:  1 
G-ratt.  556;  State  v.  Griffi.ce,  74  X.  C.  316;  State  v.  McNamara, 
3  Xev.  71;  Clare  v.  State,  30  Md.  164;  Forth  v.  State,  23  Miss. 
578;  Brown  v.  Com.  73  Pa.  321;  People  v.  Earnest,  45  Cal.  29; 
State  v.  Harden,  3  Kich.  L.  53:!:  Davis  v.  State,  46  Ala.  80;  Fin- 
negan  v.  State,  57  Ga.  427;  C Byrnes  v.  State,  51  Ala.  25;  Clin- 
ton v.  Englebrecht,  80  U.  S.  13  Wall.  434,  20  L.  ed.  659;  Com.  v. 
Norfolk  County  Ct.  of  Sessions,  5  Mass.  435;  Nicholls  v.  State, 
5  X.  J.  L.  539;  Chase  v.  State,  20  X.  J.L.  218;  State  v.  Williams, 
1  Pach.  L.  1S8;  People  v.  McKay,  IS  Johns.  212;  State  v.  Liglit- 
body,  38  Me.  200;  Pawls  v.  State,  8  Smedes  &  M.  599;  Co, 
Parker,  2  Pick.  550;  Eaton  v.  Com.  6  Binn.  447;  State  v.  Can- 
trell,  21  Ark.  127;  MeElhanon  v.  People,  92  111.  369;  State  v. 
Symoncls,  36  Me.  12S;  United 'States  v.  Hammond,  2  Woods  C. 
C.  197;  State  v.  Pockafellow,  6  X.  J.  L.  405;  JS*  ich  v.  Statt .  53 
Ga.  73,  21  Am.  Kep.  265;  State  v.  Foster,  9  Tex.  65;  Jackson  v. 
State,  11  Tex.  261;  State  v.  Davis,  12  E.  1.  492,  34  Am.  Rep. 
704;  1  Chitty,  Crim.  Law.  307;  2  Hawk.  P.  C.  307;  2  Sale,  !'.('. 
155;  Strauder  v.  West  Virginia,  100  U.  S.  303,  25  L.  ed.  664; 
JVeal  v.  Delaware,  103  U.  S.  370,  26  L.  ed.  567. 

In  criminal  cases  and  especially  those  involving  such  a  moment- 


204  LAW    OF    EVIDENCE   IN    CRIMINAL    CASES. 

cms  result  as  the  life  of  the  accused,  it  is  quite  essential  that  no* 
irregularity  on  the  part  of  the  jury  is  permitted  which  can  pos- 
sibly prejudice  him,  and  in  such  a  case  a  new  trial  will  ordinarily 
be  granted  unless  it  clearly  appears  that  it  did  not  affect  the 
verdict.  Eastwood  v.  People,  3  Park.  Crim.  Rep.  25;  People  v. 
Johnson,  46  Hun,  007. 

§  151.  Irregularity  of  the  Grand  Jury  may  be  Shown. — 
The  exclusionary  rules  that  formerly  obtained  as  to  the  inviola- 
bility of  grand  jury  secrets,  have  entirely  disappeared.  It  is  now 
well  settled,  that  when  evidence  of  a  grand  juror  as  to  proceed- 
ings before  that  body  becomes  material  to  the  administration  of 
justice,  such  evidence  will  be  allowed  and  indeed  demanded. 
State  v.  JJnxtghton,  29  K  C.  90;  State  v.  Wood,  53  K  PI.  484;. 
Burnham  v.  Hatfield,  5  Blaekf.  21;  Little  v.  Com.  25  Gratt. 
921;  United  States  v.  Charles,  2  Cranch,  C.  C.  70;  Com.  v.  Hill, 
11  Cush.  137;  People  v.  Young,  31  Cal.  503;  Hurdick  v.  Hunt,. 
43  Ind.  3S1;  Com,  v.  Head,  12  Gray,  167,  71  Am.  Dec.  741. 

Numerous  instances  in  our  criminal  annals  disclose  an  attempt 
on  the  part  of  the  accused  to  vitiate  the  indictment  against  him, 
by  introducing  evidence  having  a  tendency  to  affect  the  constitu- 
tionality of  the  organization  under  which  the  functions  of  the 
jury  are  supposed  to  derive  their  force.  And  wherever  evidence 
showing  this  informality  is  of  a  direct  and  convincing  kind  a  ques- 
tion at  once  arises  of  the  utmost  gravity.  Because  of  the  far 
reaching  consequences  of  such  evidence,  whenever  it  is  properly 
introduced,  the  question  under  review  is  thought  to  merit  the 
somewhat  extended  examination  it  receives  in  this  immediate 
connection. 

When  old  and  valid  laws  still  operative  for  the  obtainment  of 
a  grand  jury  are  disregarded,  and  a  new,  unlawful  and  forbidden 
enactment  is  obeyed  in  its  selection,  what  possible  vitality  of  life 
can  an  organization  thus  set  on  foot  obtain?  See  in  this  connec- 
tion the  opinion  of  the  chancellor  in  People  v.  White,  24  Wend. 
539,  540,  541,  542,  as  to  the  distinction  between  de  facto  officers 
of  a  tribunal  "  duly  organized,"  and  of  the  "  de  facto  officers  of 
an  unconstitutional  and  therefore  illegally  organized  court;"  also,. 
Hildreth  v.  Mclntire,  1  J.  J.  Marsh.  206-209;  also  Green 
v.  State,  59  Md.  125,  43  Am.  Eep.  542,  in  which  the  court 
of  appeals  of  that  state,  per  Irving,  J.,  says :  "  The  general 
method  prescribed  for  drawing  juries  is  mandatory,  and  substantial 


EVIDENCE    OF   PREJUDICIAL   JUKT.  205 

compliance  with  the  provisions  thereof  in  respect  to  the  selection 
and  drawing  of  jurors  is  necessary  to  make  the  jury  a  legal  one; 
.and  unless  the  selections  are  made  by  the  judge  in  the  manner 
pointed  out  by  the  statute,  exception  at  the  proper  time  and  in 
the  proper  May  may  be  successfully  taken  to  a  jury  improperly 
chosen  or  drawn;  otherwise  the  statutory  provisions  would  be 
wholly  nugatory;"  also  Dutell  v.  State,  4  G.  Greene,  125,  which 
was  to  review  the  denial  of  a  motion  "  to  quash  the  indictment  on 
the  ground  that  the  grand  jurors  who  found  it  were  not  selected 
according  to  law."  The  court  says,  per  Greene,  J.:  "  But  it  is 
urged  by  the  attorney  general,  that  the  defendant  cannot  raise 
this  objection  after  the  indictment  is  found,  but  that  he  should 
have  challenged  the  panel  of  the  grand  jury.  This  course  may  be 
adopted  with  propriety  by  a  defendant  held  to  answer  for  a  pul  >- 
lie  offense;  but  can  it  be  expected  that  citizens  at  large,  against 
whom  there  is  no  imputation  of  offense,  are  required  to  appear 
and  challenge  the  panel  of  grand  jurors,  or  be  forever  precluded 
from  raising  an  objection  to  their  selection  or  authority  to  act  ? 
It  is  true,  as  a  general  rule,  that  when  the  indictment  is  duly 
exhibited  in  open  court,  and  indorsed  '  a  true  bill,'  it  is  evidence 
that  it  was  duly  found  by  a  legal  grand  jury.  But  when  the 
records  of  a  county  show  that  the  grand  jury  were  not  legally 
selected,  and  had  no  authority  to  act,  it  is  evidence  of  a  higher 
grade,  and  shows  that  the  indictment  could  not  ha  -e  been  found, 
exhibited  and  indorsed  by  legal  authority."  See  also  Iu  itler  v. 
State,  4  G.  Greene,  291;  State  v.  Symonds,  36  Me.  128. 

Evidence  of  irregularities  in  the  selection  or  empanelling  of 
the  grand  jury  which  do  not  affect  the  material  rights  of  the 
suspect,  are  inadmissible,  as  in  such  case  the  irregularities  if  proven 
would  afford  no  valid  ground  of  objection  to  the  indictment. 
People  v.  Petrea,  92  K  Y.  128. 

Courts  will  not  listen  to  an  objection  made  to  the  constitution- 
ality of  an  act  by  the  party  whose  rights  it  does  not  affect,  and 
who,  therefore,  has  no  interest  in  defeating  it.  Cooley,  Const. 
Lim.  163,  161;  Be  Wellington,  16  Pick.  87,  26  Am.  Dec,  631. 
Nor  will  they  look  with  indulgence  upon  objections  to  irregu- 
larities in  the  mode  of  selecting  or  drawing  grand  jurors  com- 
mitted without  fraud  or  design,  which  have  not  resulted  in  plac- 
ing upon  any  panel  disqualified  jurors. 

"  .Mere  irregularities  in  the  drawing  of  a  grand  jury  and   petit 


206  LAW    OF   EVIDENCE   IN    CRIMINAL    CASES. 

jurors  do  not  furnish  a  ground  for  reversing  a  conviction  unless 
it  appears  that  they  operated  to  the  injury  or  prejudice  of  the- 
prisoner."     Cox  v.  People,  80  K  Y.  500. 

§  152.  Evidence  in  Support  of  Verdict. — Affidavits  of  the 
jurors  are  always  admissible  to  sustain  their  verdict  as  rendered, 
and  while  evidence  is  rarely  heard  to  impeach  a  verdict,  in  all 
cases  where  it  becomes  necessary  to  sustain  the  conclusion  reached, 
affidavits  tending  to  that  result  may  be  read  as  evidence.  State 
v.  Bailey,  32  Can.  83;  Downer  v.  Baxter,  30  Yt.  467;  Martin 
v.  People,  54  111.  225;  Thrall  v.  Lincoln,  28  Yt.  356;  State  v. 
Wart,  51  Iowa,  587;  Clayton  v.  State,  100  Ind.  201;  Taylor  v. 
Everett,  2  How.  Pr.  23;  Long  v.  State,  95  Ind.  486;  Kennedy  v. 
Com.  2  Ya.  Cas.  510;  De  Hart  v.  Etnire,  121  Ind.  244;  State  v. 
Cucuel,  31  K  J.  L.  249;  Carter  v.  Ford  Plate  Glass  Co.  85  Ind. 
189;  Colcer  v.  State,  20  Ark.  53;  Medler  v.  State,  26  Ind.  171; 
Jenkins  v.  State,  41  Tex.  128;  Spencer  v.  Trqford,  4z2  Md.  1; 
Stanton  v.  State,  13  Ark.  317;  Eastwood  v.  People,  3  Park.  Crim. 
Eep.  25;  People  v.  Kelly,  46  Cal.  357;  Tenney  v.  Evans,  13  1SL 
H.  462;  People  v.  Murray,  85  Cal.  361;  State  v.  Howard,  17  'N. 
H.  171;  Pe^te  v.  Pye,  62  Cal.  523;  State  v.  Pifo,  20  N.  H.  344; 
Peopte  v.  Goldenson,  76  Cal.  352;  £tofe  v.  Ayer,  23  K  H.  301; 
People  v.  Thornton,  74  Cal.  488;  Boynton  v.  Trumbull,  45  N. 
H.  408;  Grinnell  v.  Phillips,  1  Mass.  530;  P^ma  v.  Ticker,  4 
Johns.  487;  Ferrill  v.  Simpson,  8  Pick.  359;  Crockett  v.  /State,  52. 
Wis.  214;  Grottkau  v.  /State,  70  Wis.  470;  Bradford  v.  /State,  15 
Ind.  347. 

Jurors  cannot  be  called  as  witnesses  to  prove  their  own  official 
misconduct  or  that  of  their  fellows.  Such  a  course  is  conspicu- 
ously illegal.  The  court  cannot  base  its  action  on  such  testimony, 
for  it  has  been  the  long  established  rule  that  jurors  cannot  be 
called  to  the  stand  for  such  a  purpose.  Titus  v.  State,  49  N.  J. 
L.  36. 


CHAPTER  XXV. 

EVIDENCE  OF  OTHER  OFFENSES. 

§  153.  The  General  Rule  Excludes. 

154.  An  Exception  Noted  to  the  Above  Rule. 

155.  Evidence  of  Another  Crime  if  Pertinent  to  the  Issue  is 

Admissible. 

156.  Rule  as  to  Misdemeanors. 

157.  Evidence  of  other  Offenses  Should  be  Cautiously  Admit- 

ted. 
15S.  Fabrication  and  Suppression  of  Evidence. 

§  153.  The  General  Rule  Excludes. — It  is  indeed  elementary 
law  that  no  evidence  can  be  admitted  which  does  not  tend  tO' 
prove  the  issue  joined,  and  the  reason  and  necessity  of  the  rule 
are  much  stronger  in  criminal  than  in  civil  cases  for  the  observ- 
ance of  this  rule  and  of  confining  the  evidence  strictly  to  the 
issue.  The  indictment  is  all  that  the  defendant  is  expected  to 
come  prepared  to  answer.  Therefore,  the  introduction  of  evi- 
dence of  another  and  extraneous  crime  is  calculated  to  take  the 
defendant  by  surprise  and  do  him  manifest  injustice  by  creating 
a  prejudice  against  his  general  character.  People  v.  Sharp,  107 
K  Y.  427. 

The  general  rule  is  against  receiving  evidence  of  another  offense. 
A  person  cannot  be  convicted  of  one  offense  upon  proof  that  he 
committed  another,  however  persuasive  in  a  moral  point  of  view 
such  evidence  may  be.  It  would  be  easier  to  believe  a  person 
guilty  of  one  crime  if  it  was  known  that  he  had  committed  anoth- 
er of  a  similar  character,  or,  indeed,  of  any  character;  but  the 
injustice  of  such  a  rule  in  courts  of  justice  is  apparent.  It  would 
lead  to  convictions,  upon  the  particular  charge  made,  by  proof  of 
other  acts  in  no  way  connected  with  it,  and  to  uniting  evidence 
of  several  offenses  to  produce  conviction  for  a  single  one.  Cole- 
man v.  People,  55  K  Y.  81;  State  v.  Lapagi ,  57  N".  II.  245;  Peo- 
ple v.  Gibbs,  93  IST.  Y.  471;  Snyder  v.  Com.  85  Pa.  519;  Com.  v. 
Miller,  3  Cush.  243;  State  v.  Turner,  76  Mo.  350;  Brook  \.  State, 
26  Ala.  105;  State  v.  Shuford,  69  K  C.  486;  Stone  v.  State,  4 
Humph.  27;  Eosenweig  v.  People,  63  Barb.  634;  Barton  v.  State, 

207 


2l»S  LAW    OF   EVIDENCE   IN   CRIMINAL    CASES. 

18  Ohio,  221;  Coble  v.  State,  31  Ohio  St.  100;  Bonsall  v.  State, 
35  Ind.  460;  Sutton  v.  Johnson,  62  111.  209;  Baker  v.  Peopte,  105 
111.  452;  State  v.  Miller,  47  Wis.  530;  P^^Ze  v.  Barnes,  48  Cal. 
551;  Cesure  v.  State,  1  Tex.  App.  19;  /S^ate  v.  Boyland,  24  Kan 
1S6;  Cbte  v.  <7om.  5  Gratt.  696;  Dunn  v.  /State,  2  Ark.  229,  35 
Am.  Dec.  54. 

The  above  authorities  conclusively  show  that  it  is  beyond  the 
.countenance  of  either  precedent  or  statute  to  disturb  this  rule. 

It  is  said  by  the  court,  in  Shaffner  v.  Com.  72  Pa.  60,  13  Am. 
Rep.  651:  "Logically  the  commission  of  an  independent  offense 
is  not  proof  of  itself  of  the  commission  of  another  crime.  Yet  it 
cannot  be  said  to  be  without  influence  on  the  mind,  for,  certainly, 
if  one  be  shown  to  be  guilty  of  another  crime  equally  heinous,  it 
will  prompt  a  more  ready  belief  that  he  might  have  committed 
the  one  with  which  he  is  charged;  it,  therefore,  predisposes  the 
mind  of  the  juror  to  believe  the  prisoner  guilty."  It  tends  to 
give  undue  prominence,  force  and  weight  to  all  the  other  evidence 
in  the  case  for  the  prosecution.  It  detracts,  in  like  manner,  but 
in  double  portion,  from  all  the  evidence  in  his  defense.  It  preju- 
dices the  jury  against  him,  and  inclines  them  to  look  with  suspi- 
cion on  all  who  come  forward  to  testify  in  his  favor.  Hence,  it  is 
"not  only  unjust  to  the  prisoner  to  compel  him  to  acquit  himself 
•of  two  offenses  instead  of  one,  but  it  is  detrimental  to  justice  to 
burden  a  trial  with  multiplied  issues,  that  tend  to  confuse  and 
mislead  the  jury."     State  v.  Lapaae,  57  N.  H.  245. 

§  154.  An  Exception  Noted  to  tlie  Above  Rule. — It  is  famil- 
iar knowledge  that  few  postulates  of  law  are  without  exception. 
And  to  the  general  rule,  which  excludes  evidence  of  another  fel- 
ony than  the  one  under  review,  we  tind  an  exception  in  cases 
where  several  felonies  are  connected  together.  This  view  is 
upheld  in  Rex  v.  Ellis,  6  Barn.  &  C.  145,  where  the  court  says: 
"Generally  speaking,  it  is  not  competent  for  a  prosecutor  to  prove 
a  man  guilty  by  proving  him  guilty  of  another  unconnected  fel- 
ony; but  where  several  felonies  are  connected  together,  and  form 
part  of  one  entire  transaction,  the  one  is  evidence  to  show  the 
character  of  the  other."  Mr.  Roscoe  (Roscoe,  Crim.  Ev.  86)  cites 
a  case  referred  to  by  Lord  Ellenborough  in  Rex  v.  Whiley,  2 
Leach  C.  C.  9S5,  where  a  man  committed  three  burglaries  in  one 
night,  and  stole  a  shirt  in  one  place  and  left  it  in  another,  and 
they  were  all  so  connected  that  the  court  heard  the  history  of  all 


EVIDENCE   OF   OTHER   OFFENSES.  209 

three  burglaries,  and  Lord  Ellenborough  remarked  that  "if  crimes 
do  so  intermix,  the  court  must  go  through  the  detail."  See  also 
Pierce  v.  Hoffman,  24  Yt.  527;  Bottomley  v.  United  States,  1 
Story,  142;  Baalam  v.  State,  17  Ala.  433;  Dunn  v.  State,  2  Ark. 
243,  35  Am.  Dec.  54;  Com.  v.  Call,  21  Pick.  522,  32  Am.  Dec. 
2S4;  Bex  v.  Dunn,  1  Moody,  C.  C.  150;  Bex  v.  TPy/^V,  1  Bos.  & 
P.  JST.  E.  92;  Bex  v.  Long,  6  Car.  &  P.  179;  Bex  v.  Mogg,  4  Car. 
•ife  P.  364;  Bex  v.' Egerton,  1  Puss.  &  P.  375;  Tharp  v.  ^Yrt^,  15 
Ala.  757. 

It  is  never  competent  upon  a  criminal  trial  to  show  that  the 
•defendant  was  guilty  of  an  independent  crime  not  connected  with 
or  leading  up  to  the  crime  for  which  he  is  on  trial,  except  for  the 
purpose  of  showing  motive,  interest  or  guilty  knowledge.  Earle, 
J.,  in  People  v.  Greenwall,  10S  N.  Y.  301. 

It  has  been  reasoned,  but  on  grounds  that  will  not  be  every- 
where admitted,  that,  under  certain  indictments,  evidence  of 
previous  crimes  may  be  shown.  Judge  Papallo  says:  "The 
■cases  in  which  offenses  other  than  those  charged  in  the  indict- 
ment may  be  proven,  for  the  purpose  of  showing  guilty  knowl- 
edge or  intent,  are  very  few."  People  v.  Corbin,  5G  JN".  Y.  363, 
15  Am.  Pep.  429.  The  very  language  employed  indicates  that 
there  are  cases  where  such  evidence  is  relevant. 

"To  make  one  criminal  act  evidence  of  another,  a  connection 
between  them  must  have  existed  in  the  mind  of  the  actor,  linking 
them  together  for  some  purpose  he  intended  to  accomplish;  or  it 
must  be  necessary  to  identify  the  person  of  the  actor,  by  a  con- 
nection which  shows  that  he  who  committed  the  one  must  have 
done  the  other.  Without  this  obvious  connection,  it  is  not  only 
unjust  to  the  prisoner  to  compel  him  to  acquit  himself  of  two 
offenses  instead  of  one,  but  it  is  detrimental  to  justice  to  burden 
a  trial  with  multiplied  issues  that  tend  to  confuse  and  mislead  the 
jury.  The  most  guilty  criminal  may  be  innocent  of  other  offenses 
charged  against  him,  of  which,  if  fairly  tried,  he  might  acquit 
himself.  From  the  nature  and  prejudicial  character  of  such  evi- 
dence, it  is  obvious  it  should  not  be  received,  unless  the  mind 
plainly  perceives  that  the  commission  of  the  one  tends,  by  a  visi- 
ble connection,  to  prove  the  commission  of  the  other  by  the  pris- 
oner. If  the  evidence  be  so  dubious  that  the  judge  <1<>cs  not 
clearly  perceive  the  connection,  the  benefit  of  the  doubt  should 
be  given  to  the  prisoner,  instead  of  suffering  the  minds  of  the 
14 


210  LAW    OF    EVIDENCE    IN    CRIMINAL    CASES. 

jurors  to  be  prejudiced  by  an  independent  fact,  carrying  with  it 
no  proper  evidence  of  the  particular  guilt."  Shaffner  v.  Com. 
72  Pa.  60,  13  Am.  Eep.  649  (Agnew,  J.). 

In  the  case  of  Bottomley  v.  United  States,  1  Story,  135,  that 
eminent  jurist  said:  "In  all  cases  where  the  guilt  of  the  party 
depends  upon  the  intent,  purpose,  or  design  with  which  the  act  is 
done,  or  upon  his  guilty  knowledge  thereof,  I  understand  it  to  be 
a  general  rule,  that  collateral  facts  may  be  examined  into,  in 
which  he  bore  a  part,  for  the  purpose  of  establishing  such  guilty 
intent,  design,  purpose,  or  knowledge.  ...  In  short, 
wherever  the  intent  or  guilty  knowledge  of  a  party  is  a  material 
ingredient  in  the  issue  of  a  case,  these  collateral  facts  [that  is 
other  acts  and  declarations  of  a  similar  character]  tending  to 
establish  such  intent  or  knowledge,  are  proper  evidence." 

It  is  certainly  true  that,  in  a  criminal  trial,  evidence  may  be 
received  of  any  one  of  a  system  of  crimes,  mutually  dependent, 
but  there  must  be  a  system  established  between  the  offense  on 
trial,  and  that  introduced,  to  connect  it  with  the  defendant. 
Hester  v.  Com.  85  Pa.  139.  To  make  one  criminal  act  evidence 
of  another,  some  connection  must  exist  between  them;  that  the 
connection  must  be  traced  in  the  general  design,  purpose  or  plan 
of  the  defendant,  or  it  may  be  shown  b}7  such  circumstances  of 
identification  as  necessarily  tends  to  establish  that  the  person  who 
committed  one  must  have  been  guilty  of  the  other.  The  collat- 
eral or  extraneous  offense  must  form  a  link  in  the  chain  of  cir- 
cumstances or  proofs  relied  upon  for  conviction;  as  an  isolated  or 
disconnected  fact  it  is  of  no  consequence;  a  defendant  cannot  be 
convicted  of  the  offense  charged  simply  because  he  is  guilty  of 
another  offense. 

In  the  case  of  Goerson  v.  Com.  99  Pa.  388,  Mercur,  J.,  giving 
the  result  of  all  the  cases  upon  the  admissibility  of  such  testimony, 
Bays:  "Yet,  under  some  circumstances,  evidence  of  another 
offense  by  the  defendant  may  be  given.  Thus,  it  may  be  to 
establish  identity;  to  show  the  act  charged  was  intentional  and 
willful,  not  accidental;  to  prove  motive;  to  show  guilty  knowledge 
and  purpose,  and  to  rebut  any  inference  of  mistake;  in  case  of 
death  by  poison,  to  prove  the  defendant  knew  the  substance 
administered  to  be  poison;  to  show  him  to  be  one  of  an  organiza- 
tion banded  together  to  commit  crimes  of  the  kind  charged,  and 
to  connect  the  other  offense  with  the  one  charged  as  part  of  the 
same  transaction."     Swan  v.  Com.  104  Pa.  218. 


EVIDENCE  OF  OTHER  OFFENSES.  211 

"Where  it  is  necessary  to  prove  a  particular  intent  in  order  to 
establish  the  offense  charged,  proof  of  previous  acts  of  the  same 
kind  is  admissible  for  the  purpose  of  proving  guilty  knowledge  or 
intent.  In  cases  of  uttering  forged  instruments;  "receiving  stolen 
property;  passing  worthless  bank  bills, — these,  and  many  other 
cases  might  be  referred  to."  See  People  v.  Schweitzer,  23  Mich. 
310,  and  note.  See  marginal  note  appended  to  the  case  of  Peo- 
ple v.  Wakely,  62  Mich.  297. 

If  a  prisoner  upon  trial  for  one  offense  does  call  out  facts  on 
cross-examination,  without  objection,  tending  to  show  that  he  is 
not  guilty  of  another  offense,  this  does  not  justify  evidence  on 
the  part  of  the  prosecution  to  prove  that  he  is  guilty  of  the  other 
offense.  The  accused  can  only  be  tried  for  the  crime  charged; 
and  this  rule  cannot  be  abrogated  by  evidence  which  may  have 
been  called  out  in  relation  to  another  crime.  If  a  person  on  trial 
for  stealing  a  horse  gives  evidence,  without  objection,  that  he  did 
not  on  some  other  occasion  steal  other  property,  it  would  not  be 
competent  for  the  prosecution  to  introduce  evidence  that  he  was 
in  fact  guilty  of  the  other  crime;  and  especially  not,  if  the  evi- 
dence as  to  the  other  property  came  out  incidentally  upon  c 
examination.  A  party  does  not  acquire  the  right  to  give  imma- 
terial evidence  because  his  adversary  has  done  the  same  thing. 
The  rule  involved  would  apply  when  a  party  had  given  secondary 
evidence  of  a  material  fact,  but  does  not  unless  the  evidence  itself 
is  material.  Otherwise,  the  parties  could  make  every  trial  inter- 
minable, by  litigating  collateral  questions.  Coin/tan  v.  People, 
55  N.  Y.  81. 

Another  exception  to  the  general  rule  that  independent  crimes 
cannot  be  proved,  is  found  in  that  class  of  cases  where  acts  are 
shown  to  have  been  done  as  part  of  the  same  plan  or  scheme  of 
fraud.  Jordan  v.  Osgood,  109  Mass.  457.  Where  an  act  is 
shown  to  have  been  done  by  a  party  entrusted  with  money,  and 
the  inquiry  is  whether  it  was  an  act  of  embezzlement,  other  acts 
in  the  conduct  of  the  same  business  are  admissible  as  showing  his 
criminal  intent.  Rex  v.  Ellis,  6  Barn,  <k  C.  145;  Com.  v.  Tuck- 
erman,  10  Gray,  173;  Com.  v.  Shepard,  1  Allen,  575;  Reg.  v. 
Richardson,  2  Fost.  &  F.  343. 

So  where  there  is  evidence  of  a  conspiracy  between  the  defend- 
ant and  a  deputy  collector  to  defraud  the  revenue,  by  entering 
goods  at  an  undervaluation,  evidence  of  other  transactions  in  the 


212  LAW    OF    EVIDENCE    IN    CKIMINAL    CASES. 

conduct  of  the  criminal  enterprise  is  admissible.  Bottomley  v. 
United  States,  1  Story,  135.  "Where  a  conspiracy  to  defraud  is 
alleged,  other  fraudulent  purchases  than  those  set  out  in  the  in- 
dictment, made  about  the  same  time  and  in  pursuance  of  the  con- 
spiracy, are  admissible  for  the  purpose  of  showing  the  intent  with 
which  the  goods  were  purchased.  Com.  v.  Eastman,  1  Cush. 
189,  48  Am.  Dec.  596;  Rex  v.  Roberts,  1  Campb.  399.  In  this 
of  cases  the  acts  done  are  connected  by  unity  of  plan  and 
motive,  and  therefore  bear  upon  the  purpose,  the  criminality  of 
which  is  in  question. 

Judge  Dixon  in  State  v.  Raymond,  53  IS".  J.  L.  2G0,  tabulates  a 
series  of  exceptions  to  this  general  rule  in  the  manner  following : 
"One  arises,  where  the  circumstances  of  the  crime  indicate  that 
they  were  both  committed  by  the  same  person — as  if  two  build- 
ings should  be  fired  by  similar  novel  contrivances  {Com.  v.  Choate, 
105  Mass.  451)  or,  perhaps,  the  notorious  Whitechapel  murders. 
Another,  when  the  defendant's  perpetration  of  an  extraneous 
crime  shows  that  he  had  the  opportunity  of  committing  the  crime 
in  issue.  Reg.  v.  Cobden,  3  Fost.  &  F.  S33.  Another,  when  the 
several  crimes  may  have  sprung  from  a  single  motive,  aiming  at 
the  accomplishment  of  the  same  end.  People  v.  Wood,  3  Park. 
Crim.  Rep.  681.  Another  exception  exists,  when  the  commission 
of  a  different  offense  discloses  a  motive  for  the  commission  of  the 
offense  charged;  e.  g.,  the  defendant's  adultery  with  a  wife  may 
be  relevant  on  his  trial  for  the  murder  of  her  husband.  Com.  v. 
Ferrigan,  44  Pa.  3S6.  Another,  when  one  crime  may  have  been 
perpetrated  for,  or  means  of  committing,  concealing  or  escaping 
from  another.  Rex  v.  Cleives,  4  Car.  &  P.  221.  Exception  is 
made  also,  when  the  acts  charged  to  be  criminal  may  reasonably 
be  innocent,  and  are  criminal  only  when  performed  with  a  certain 
intent  or  with  knowledge  of  a  certain  fact;  in  such  case,  other 
acts  of  the  defendant,  though  criminal,  may  be  adduced  to  prove 
that  he  had  such  specific  intent  or  knowledge.  In  this  category 
stand  the  decisions  with  regard  to  the  utterance  of  counterfeits, 
the  making  of  false  pretenses,  the  reception  of  stolen  goods,  the 
publication  of  libels,  and,  probably,  occurrences  claimed  by  the 
defendant  to  be  accidental."  Whart.  Crim.  Ev.  §  50  and  notes; 
Reg.  v.  Francis,  L.  P.  2  C.  C.  128. 

His  honor  concludes  in  the  following  language : 

"And  in  general  it  may  be  said  that  whenever  the  defendant's 


EVIDENCE    OF    OTHER    OFFENSES.  213 

guilt  of  an  extraneous  crime  tends  logically  to  prove  against  him 
some  particular  element  of  the  crime  for  which  he  is  being  Tried, 
such  guilt  may  be  shown.  But  it  must  not  be  supposed  that  the 
defendant's  propensity  to  commit  crime,  or  even  to  commit  crimes 
of  the  same  sort  as  that  charged,  can  be  put  in  evidence  to  prove 
his  guilt  of  the  particular  offense;  for.  however  reasonable  would 
be  the  deduction  that,  when  a  pocket  is  picked  in  a  group  of  per- 
sons, of  whom  only  one  is  addicted  to  picking  pockets,  he  is  the 
offender,  his  singularity  in  this  respect  could  not,  under  our  legal 
theory,  figure  as  proof  of  his  guilt.  There  must  appear,  between 
the  extraneous  crime  offered  in  evidence  and  the  crime  of  which 
the  defendant  is  accused,  some  other  real  connection,  beyond  the 
allegation  that  they  have  both  sprung  from  the  same  vicious  dis- 
position." 

In  Pierson  v.  People,  79  X.  Y.  424,  35  Am.  Rep.  524,  the  pris- 
oner was  charged  with  murdering  one  "Withey  who  was  a  married 
man.  The  prisoner  was  also  a  married  man.  Evidence  had  been 
given  of  intimate  relations,  though  not  necessarily  criminal,  be- 
tween the  prisoner  and  Withey's  wife,  before  the  death  of  the 
deceased.  After  the  murder  the  prisoner  took  the  widow  and 
her  sister  to  the  house  of  a  friend  in  the  evening  and  came  away 
with  the  widow  late  that  night  alone.  A  few  days  after  the  mur- 
der the  prisoner  disappeared  from  the  neighborhood.  It  was  then 
proved  by  a  witness  from  Michigan,  who  was  a  clergyman,  that 
the  prisoner  and  the  widow  of  Withey  appeared  before  him  and 
were  married,  and  the  prisoner  declared  on  oath  before  him  that 
he  knew  of  no  legal  obstacle  to  his  marriage  with  the  woman  and 
thereupon  he  married  them.  This  evidence  was  objected  toon 
the  ground  that  it  had  no  direct  or  material  bearing  upon  the 
main  question  in  the  case,  and  that  it  simply  tended  to  prejudice 
the  prisoner  by  proving  him  guilty  of  another  and  separate  fel- 
ony. The  evidence  as  to  the  murder  was  circumstantial,  and  this 
court  held  that  the  evidence  in  controversy  was  proper  for  the 
purpose  of  proving  a  motive  for  the  murder.  In  that  case  the 
evidence  showed  a  direct  and  logical  connection  between  the 
murder  of  the  deceased  and  its  perpetration  by  the  prisoner.  It 
showed  that  the  prisoner  had  a  passion  for  the  possession  of  the 
wife  of  the  deceased,  and  that  for  the  purpose  of  obtaining  pos- 
session of  her  person  he  did  commit  the  crimes  of  perjury  and 
bigamy,  and  to  accomplish  this  possession  of  the  woman,  the  tak- 


211  LAW   OF    EVIDENCE   IN    CRIMINAL   CASES. 

ing  off  of  the  woman's  husband  was  an  obvious  necessity.  The 
motive  of  the  prisoner  was  the  desire  for  the  woman,  and  the 
strength  of  that  desire,  in  other-words  the  strength  of  the  motive 
which  impelled  the  murder  was  shown  in  this  way. 

In  the  case  of  People  v.  Wood,  3  Park.  Crim.  Rep.  6S1,  evi- 
dence had  been  given  of  separate  and  distinct  felonies  committed 
by  the  prisoner  for  the  purpose  of  showing  motive  on  his  part  in 
the  killing  of  the  deceased.  The  learned  court  held  that  the  evi- 
dence was  admissible  because  it  tended  to  show  with  other  evi- 
dence that  the  felonies  were  parts  of  a  single  transaction,  influ- 
enced by  a  single  motive  and  designed  to  accomplish  a  single 
object;  that  they  were  all  connected  by  unity  of  plot  and  design, 
and,  if  proved,  would  tend  to  show  the  motive  which  actuated 
the  prisoner  in  taking  the  life  of  the  person  stated  in  the  indict- 
ment. In  that  case  the  evidence  tended  to  show  that  each 
felonious  act  was  a  necessary  one  for  the  purpose  of  carrying  out 
the  main  object  which  then  existed  in  the  mind  of  the  prisoner, 
and  that  all  of  them  formed  but  one  transaction  and  were  con- 
nected together  as  parts  of  one  whole. 

The  case  of  Stout  v.  People,  1  Park.  Crim.  Rep.  132,  contains 
the  same  general  principles.  There,  evidence  was  admitted  to 
the  effect  that  the  prisoner  was  seen  in  bed  with  the  wife  of  the 
man  he  was  charged  with  murdering,  although  such  wife  was  also 
the  prisoner's  sister,  and  it  was  admitted  as  furnishing  a  motive 
for  the  prisoner  to  get  the  husband  out  of  the  way.  Com.  v. 
Tiiekerman,  10  Gray,  173,  was  a  case  of  embezzlement  and  evi- 
dence of  other  embezzlements  from  the  same  party  during  a  series 
of  years  and  contained  in  a  statement  made  by  the  prisoner,  was 
admitted. 

Com.  v.  McCarthy,  119  Mass.  354,  was  an  indictment  for  arson. 
To  prove  the  intent  of  the  prisoner  evidence  was  received  that 
on  two  prior  occasions  the  prisoner  had  set  fire  to  a  shed  ten  feet 
distant  from  the  building  destroyed  and  connected  therewith  by 
a  flight  of  stairs.  This  had  a  direct  tendency  to  prove  that  the 
firing  was  not  accidental  but  intentional  and  felonious. 

Com.  v.  Bradford,  120  Mass.  12,  was  an  indictment  for  arson, 
and  the  same  class  of  evidence  was  received  and  for  the  same 
purpose. 

Com.  v.  Merriam,  11  Pick.  518,  25  Am.  Dee.  120,  was  an  in- 
dictment for  adultery.     Evidence  of  improper  familiarity  between 


EVIDENCE  OF  OTHER  OFFENSES.  215' 

the  defendant  and  the  same  woman,  shortly  before  the  act  in 
question  was  admitted.  The  evidence  was  admitted  on  the 
ground  that  intimacy  and  these  acts  of  familiarity  with  the  same 
woman  had  a  tendency  to  establish  the  fact  of  the  adultery  charged 
in  the  indictment.  Evidence  tending  to  show  previous  acts  of 
indecent  familiarity  would  have  a  tendency  to  prove,  in  the  case 
of  the  same  woman,  of  course,  a  breaking  down  of  all  the  safe- 
guards of  self  respect  and  modesty  and  hence  a  gradual  separa- 
tion of  the  woman  to  lend  herself  to  the  commission  of  the  crime. 

The  case  of  People  v.  0 'Sullivan,  104  K  Y.  481,  58  Am.  Rep. 
530,  the  court  simply  held  that  upon  the  trial  of  the  defendant 
for  the  crime  of  rape,  it  was  competent  to  prove  that  he  had  at- 
tempted to  commit  the  same  crime  upon  the  same  woman  a  short 
time  prior  thereto.  It  was  put  upon  the  ground  that  upon  the 
trial  of  a  person  for  a  particular  crime  it  is  always  competent  to 
show  upon  the  question  of  his  guilt  that  he  had  made  an  attempt 
at  some  prior  time,  not  too  remote,  to  commit  the  same  offense. 
It  was  said  further  that  it  would  be  incompetent  to  prove  that 
the  defendant  had  committed  or  attempted  to  commit  a  rape  upon 
any  other  woman.  And  it  was  stated  that  upon  the  trial  of  a 
prisoner  for  murder,  it  is  competent  to  show  that  he  had  made 
previous  attempts  or  threats  to  kill  his  victim,  and  hence,  upon 
the  same  principle,  it  was  held  that  when  charged  with  rape  it 
was  competent  to  show  that  the  defendant  had  previonsly  declared 
his  intention  to  commit  the  offense  or  made  an  unsuccessful 
attempt  to  do  so. 

In  the  case  of  Com.,  v.  Abbott,  130  Mass.  472,  upon  an  indict- 
ment for  murder,  proof  was  offered  on  the  part  of  the  prisoner  of 
former  ill  feeling  of  the  husband  of  the  deceased  toward  the 
deceased.  It  was  rejected  as  too  remote  and  disconnected  with 
the  crime  charged.  Particularly  as  there  was  evidence  of  the 
parties  living  together  on  good  terms,  long  subsequent  to  the 
time  of  this  alleged  ill  feeling. 

In  Com.  v.  Jackson,  132  Mass.  16,  the  prisoner  was  indicted 
for  selling  property  by  false  representations  under  the  Massa- 
chusetts statute.  Evidence  of  sales  of  other  property  of  a  like 
nature  to  other  persons  under  representations  proved  false  was 
admitted  for  the  purpose  of  showing  the  intent  with  which  the 
representations  in  question  were  made.  The  supreme  court  of 
Massachusetts  held  that  the  evidence  was  inadmissible,  and  that 


216  LAW    OF    EVIDENCE    IN    CRIMINAL    CASES. 

for  the  error  of  its  admission  a  new  trial  should  be  granted.  The 
case  is  cited  only  for  the  purpose  of  quoting  the  opinion  of  the 
court  upon  the  danger  of  this  kind  of  evidence. 

Devens,  J.,  writing  the  opinion,  said  that,  "the  other  state- 
ments made  by  the  defendant  at  other  times  as  to  the  other 
animals  which  he  sold,  might  have  been  false,  while  those  made 
in  the  case  for  which  he  was  tried  were  not.  The  transactions 
formed  no  part  of  a  single  scheme  or  plan  any  more  than  the 
various  robberies  of  a  thief.  They  were  entered  upon  as  from 
time  to  time  he  might  succeed  in  entrapping  credulous  or  unwary 
persons.  Even  if  they  were  transactions  of  the  same  general 
character,  they  differed  in  all  their  details,  and  the  defendant  was 
compelled  to  defend  himself  against  three  distinct  charges  in 
addition  to  the  one  for  which  alone  he  was  indicted.  Evidence 
of  the  commission  of  other  crimes  by  a  defendant  may  deeply 
prejudice  him  from  the  jury,  while  it  does  not  legally  bear  upon 
his  case.  It  certainly  would  not  be  competent  in  order  to  show 
the  intent  with  which  one  entered  a  house  or  took  an  article  of 
personal  property  to  prove  that  he  had  committed  a  burglary  or 
larceny  at  another  time." 

§  155.  Evidence  of  Another  Crime  if  Pertinent  to  the- 
Issue  is  Admissible. — Although  evidence  offered  in  support  of 
an  indictment  for  felony  be  proof  of  another  felony,  that  circum- 
stance does  not  render  it  inadmissible.  If  the  evidence  offered 
tends  to  prove  material  fact,  it  is  admissible,  although  it  may  also 
tend  to  prove  the  commission  of  another  distinct  and  separate 
offense.  .Ma son  v.  State,  42  Ala.  532;  Rex  v.  Kirkwood,  1  Lewim. 
C.  C.  103;  Com,  v.  Stearns,  10  Met.  256;  Beg.  v.  Aston,  2  Kussell,. 
Crimes  (4th  ed.)  841;  3  Kussell,  Crimes,  286;  Beg.  v.  Weeks,, 
Leigh  &  C.  18,  21. 

"  The  principle  is,  that  all  the  evidence  admitted  must 
be  pertinent  to  the  point  in  issue;  but  if  it  be  pertinent  to 
this  point,  and  tends  to  prove  the  crime  alleged,  it  is  not  to 
to  be  rejected,  though  it  also  tends  to  prove  the  commission  of 
other  crimes,  or  to  establish  collateral  facts."  Com.  v.  Choate,  105' 
Mass.  451,  158.  In  Beg.  v.  Lewis,  6  Car.  &  P.  161,  Lord  Den- 
man  "  could  not  conceive  how  the  relevancy  of  the  fact  to  the 
charge  could  be  affected  by  its  being  the  subject  of  another 
charge."  Evidence  of  other  crimes  than  the  one  charged  is  so 
frequently  received  on  indictments  for  forgery  and  counterfeiting,. 


EVIDENCE  OF  OTHEK  OFFENSES.  217 

and  uttering  forged  or  counterfeit  papers  or  coins,  that  those 
classes  of  cases  are  sometimes  erroneously  spoken  of  as  exceptions 
to  the  general  rule  of  evidence.  They  are  not  exceptions.  Evi- 
dence is  received  in  all  cases  when  it  is  relevant  (unless  it  is 
rejected,  on  some  ground  of  fact,  by  an  exercise  of  judicial  dis- 
cretion) without  reference  to  the  question  whether  the  facts 
proved  are  criminal  or  not.  Its  competency  consists,  not  in  the 
innocent  character  of  the  act  which  it  tends  to  prove,  but  in  the 
relevancy  of  that  act  to  the  issue.  Evidence  of  other  crimes  is 
more  frequently  received  in  cases  of  forgery  and  counterfeiting 
than  in  other  cases,  not  because  those  cases  are  exceptional  in  law, 
but  because,  in  fact,  such  evidence  is  more  frequently  available  in 
those  than  in  other  cases  to  prove  a  material  fact.  It  is  admitted 
to  prove  the  guilty  knowledge,  the  motive,  or  the  intent,  not  be- 
cause there  is  any  exception  or  special  rule  of  law  applicable  to 
proof  of  the  defendant's  knowledge,  motive,  or  intent,  but  because 
his  knowledge,  motive,  or  intent  is  a  material  fact  to  be  proved, 
like  any  other  material  fact,  by  relevant  evidence.  Archb.  Crim. 
PI.  (4th  ed.)  486.     See  State  v.  Lapage,  57  1ST.  H.  245. 

Competent  evidence  for  the  purpose  of  showing  the  existence 
of  a  motive  for  the  commission  of  the  offense  charged,  is  none  the 
less  so  because  it  is  also  proved  the  commission  of  another  crime. 
Pierson  v.  People,  79  K  Y.  424;  Pontius  v.  People,  S2  K  Y. 
330. 

§  156.  Rule  as  to  Misdemenanors. — In  Michigan,  Indiana, 
"Wyoming,  and  perhaps  in  other  jurisdictions,  it  has  been, 
in  effect,  held  that  in  misdemeanors  the  prosecution  on  a 
trial  under  an  indictment  so  drawn  that  it  might  cover  a  num- 
ber of  different  offenses  of  the  same  nature,  after  examining 
the  first  witness  as  to  one  offense  on  a  day  certain,  must  confine 
it  proof  to  that  particular  offense,  and  that  the  admission  of  evi- 
dence tending  to  prove  other  offenses  is  improper.  Fields  v. 
Wyoming,  1  Wyo.  78;  People  v.  Claris,  33  Mich.  112;  Richard 
son  v.  State,  63  Ind.  192.  In  Missouri,  however,  a  different  rule 
has  prevailed  for  half  a  century.  In  Storrs  v.  State,  3  Mo.  10, 
where  several  distinct  violations  of  the  "act  to  license  retailers  of 
vinous  and  spirituous  liquors,"  approved  February  4,  1825,  were 
charged  in  a  single  count  of  the  indictment,  it  was  decided  that- 
distinct  felonies  of  the  same  character  and  degree,  though  com- 
mitted at  different  times,  may  be  charged  in  the  same  count  in 


218  LAW    OF    EVIDENCE    IN    CRIMINAL    CASES. 

ihe  indictment,  and  it  will  be  no  ground  either  of  demurrer,  or 
arrest  of  judgment.  In  such  cases,  however,  the  prosecution  may- 
be compelled  to  elect  on  which  charge  he  will  proceed.  But  in 
the  case  of  offenses,  inferior  to  felony,  the  practice  of  calling  on 
the  prosecutor  to  elect  on  which  charge  he  will  proceed  does  not 
exist,  and  the  prosecutor  may  give  evidence  of  several  libels, 
assaults,  etc.,  upon  the  same  indictment  whether  they  be  on  the 
same  or  different  persons.  In  State  v.  Kibby,  7  Mo.  317,  it  was 
held  that  the  joinder  of  several  offenses  in  the  same  indictment  in 
different  counts  is  no  cause  of  demurrer  or  arrest  of  judgment. 
When  the  crimes  alleged  are  misdemeanors  the  court  will  not  com- 
pel the  prosecutor  to  elect  on  which  one  he  will  proceed.  To  the 
same  effect  are  State  v.  Jackson,  17  Mo.  544,  59  Am.  Dec.  281; 
State  v.  Nelson,  19  Mo.  393.  In  State  v.  Fletcher,  18  Mo.  426, 
it  was  declared  that,  "  in  cases  of  misdemeanors  the  joinder  of 
several  offenses  will  not  in  general  vitiate  in  any  stage  of  the 
prosecution.  For,  in  offenses  inferior  to  felony,  the  practice  of 
quashing  the  indictment,  or  calling  upon  the  prosecutor  to  elect 
•on  which  charge  he  will  proceed,  does  not  exist.  But  on  the  con- 
trary it  is  the  constant  practice  to  receive  evidence  of  several  libels 
and  assaults  upon  the  same  indictment.  It  was  formerly  held 
that  assaults  upon  more  than  one  individual  could  not  be  joined 
in  the  same  proceeding,  but  this  is  now  exploded.  And  this  prac- 
tice is  approved  in  State  v.  Myers,  20  Mo.  410. 

§  157.  Evidence  of  Other  Offenses  Should  be  Cautiously 
Admitted. — It  is  a  dangerous  species  of  evidence,  not  only 
because  it  requires  a  defendant  to  meet  and  explain  other  acts 
than  those  charged  against  him,  and  for  which  he  is  on  trial,  but 
.also  because  it  may  lead  the  jury  to  violate  the  great  principle, 
that  a  party  is  not  to  be  convicted  of  one  crime  by  proof  that  he 
is  guilty  of  another.  For  this  reason,  it  is  essential  to  the  rights 
■of  the  accused  that,  when  such  evidence  is  admitted,  it  should  be 
carefully  limited  and  guarded  by  instructions  to  the  jury,  so  that 
its  operation  and  effect  may  be  confined  to  the  single  legitimate 
purpose  for  which  it  is  competent.  Itoscoe,  Crim.  Ev.  90,  94; 
Rex  v.  Ball,  Puiss.  &  K.  132;  Com.  v.  Eastman,  1  Cush.  1S9,  48 
Am.  Dec.  596. 

"Proof  that  a  man  has  violated  the  law  in  particular  instances, 
•cannot  be  rebutted  by  proof  that  he  did  not  violate  it  in  other 
instances  when  he  had  the  opportunity,  and  was  tempted  to  do 


EVIDENCE    OF    OTHER    OFFENSES.  219 

so."  Com.  v.  Barlow,  97  Mass.  597;  AUbrecht  v.  People,  78  111. 
510. 

§  158.  Fabrication  and  Suppression  of  Evidence. — "The 
suppression  or  destruction  of  pertinent  evidence,  is  always  a  prej- 
udicial circumstance  of  great  weight;  for,  as  no  act  of  a  rational 
being  is  performed  without  a  motive,  it  naturally  leads  to  the 
inference  that  such  evidence,  if  it  were  adduced,  would  operate 
unfavorably  to  the  party  in  whose  power  it  is."  1  Starkie,  Ev. 
p.  137. 

By  a  parity  of  reasoning  any  attempt  to  prevent  the  attendance 
of  a  witness  who  is  morally  certain  to  give  important  testimony 
in  the  case  is  a  fact  that  may  be  proved  at  the  trial  as  warranting 
a  legitimate  inference  of  guilt.  People  v.  Pitcher,  15  Mich.  397; 
State  v.  Staples,  17  X.  H.  113;  People  v.  Ebvey,  29  Hun,  382. 

It  is  error  however,  to  indulge  this  inference  merely  from  the 
fact  that  a  party  fails  to  call  a  certain  witness.  No  prejudice 
should  arise  from  such  failure  unless  the  witness  be  a  material  one 
and  presumptively  under  the  special  control  of  the  party.  Scovil 
v.  Baldwin,  27  Conn.  31G;    Williams  v.  Com.  91  Pa.  493. 

In  this  connection  it  is  well  to  recall  the  statements  of  a  previ- 
ous paragraph  in  the  text  that  no  adverse  presumption  arises  from 
the  fact  that  the  defendant  fails  to  take  the  stand  in  his  own 
behalf.  By  statutory  enactment  in  many  states,  such  failure  is 
not  even  the  subject  of  comment  from  the  presiding  judge  or 
public  prosecutor;  although  it  would  seem  that  where  such  com- 
ment is  made,  it  is  no  ground  for  a  new  trial.  Calkins  v.  State, 
IS  Ohio  St.  3GG,  98  Am.  Dec.  121. 

The  language  of  the  opinion  in  the  celebrated  Ituloff  case,  will 
sustain  this  averment  of  the  text.  "Upon  a  criminal  trial,  the 
presiding  judge  has  no  right,  in  charging  the  jury,  to  allude  to 
the  fact  that  the  prisoner  has  not  availed  himself  of  the  statutory 
privilege  of  being  a  witness  in  his  own  behalf,  but  where  such 
allusion  is  made  and  subsequently,  upon  his  attention  being  called 
to  it,  he  states  to  the  jury  that  there  was  no  law  requiring  the 
prisoner  to  be  sworn,  and  no  inference  to  be  drawn  against  him 
from  the  fact  of  his  not  being  sworn.  Held,  that  this  cured  the 
error."     Rulqfv.  People,  45  X.  V.  213. 

The  resort  to  falsehood  and  evasion  by  one  accused  of  a  crime 
affords  of  itself  a  presumption  of  evil  intentions,  and  has  always 
been  considered  proper  evidence  to  present  to  a  jury  upon  the 


220  LAW    OF   EVIDENCE    IN    CRIMINAL   CASES. 

question  of  the  guilt  or  innocence  of  the  party  accused.  United! 
States  v.  Randall,  Deady,  524;  State  v.  Reed,  62  Me.  129;  Com. 
v.  Goodvjin,  14  Gray,  55. 

"The  falsity  of  the  various  accounts  given  by  the  defendant  of 
the  circumstances  attending  the  commission  of  the  crime,  so  far 
from  modifying  the  force  of  the  express  admission  of  Conroy 
that  he  intended  to  shoot  Keenan,  gives  it  additional  weight,  and 
would  of  itself  afford  sufficient  ground  to  authorize  an  inference  of 
guilt,  by  the  jury.  Although  the  evidence  shows  that  the  defend- 
ant had  been  drinking  during  the  evening,  it  does  not  show  that 
he  had  become  intoxicated,  or  that  the  liquor  taken  by  him  had 
obscured  his  reason  or  weakened  his  intellect.  The  readiness  with 
which  he  saw  the  danger  his  conduct  had  brought  upon  him,  and 
the  promptitude  with  which  he  adopted  precautions  to  obviate  it, 
were  circumstances  from  which  a  jury  might  well  conclude  that 
he  perpetrated  the  act  with  an  understanding  of  its  consequences- 
and  a  reckless  disposition  to  brave  them."  People  v.  Conroy,  97 
K  Y.  62. 

The  mere  fabrication  of  evidence  does  not  furnish  of  itself  any 
presumption  of  law  against  the  innocence  of  the  party,  but  is  a 
matter  to  be  dealt  with  by  the  jury.  Innocent  persons,  under  the 
influence  of  terror  from  the  danger  of  their  situation,  have  been 
sometimes  led  to  the  simulation  of  exculpatory  facts,  of  which 
several  instances  are  stated  in  the  books.  Again,  the  exercise  by 
a  client  of  his  undoubted  right  to  prevent  his  solicitor  from  dis- 
closing confidential  communications,  can  form  no  just  ground  for 
adverse  presumption  against  him.  Neither  has  the  mere  non- 
production  of  deeds  or  papers,  upon  notice,  any  other  legal  effect 
in  general  than  to  admit  the  other  party  to  prove  their  contents 
by  parol,  and.  as  against  the  party  refusing  to  produce  them,  to 
rai>e  a  prima  facie  presumption  that  they  have  been  properly 
stamped.  It  cannot,  however,  be  denied,  but  that  such  conduct,, 
in  the  absence  of  all  excuse,  is  calculated  to  produce  in  the  minds 
of  the  jury  a  very  prejudicial  effect  against  any  person  having 
recourse  to  it;  and  if  such  person  be  charged  with  fraud  or  other 
misconduct,  and  the  production  of  his  papers  would  establish  his 
guilt  or  innocence,  the  jury  will  be  amply  justified  in  presuming 
him  guilty  from  the  unexplained  fact  of  their  non-production. 
On  the  same  principle,  jurors  will  do  well  to  regard  with  suspi- 
cion the  conduct  of  any  party,  who,  having  it  in  his  power  to  pro- 


EVIDENCE    OF    OTHER    OFFENSES.  221 

■duce  cogent  evidence  in  support  of  bis  case,  is  content  to  offer 
testimony  of  a  weaker  and  less  satisfactory  character.  1  Taylor, 
Ev.  §  117,  citing  3  Coke,  Inst.  232;  Wills,  Circ.  Ev.  154;  Went- 
worth  v.  Lloyd,  33  L.  J.  Ch.  6S8,  per  Lord  Chelmsford,  Doin. 
Proc.  10  H.  L.  Cas.  5S9;  Cooper  v.  Gibbons,  3  Campb.  363;  Crisp 
v.  Anderson,  1  Stark.  35;  Roe  v.  Harvey,  1  Burr.  2184,  per  Lord 
Mansfield;  Bate  v.  Kinsey,  1  Cromp.  M.  &  R.  41,  per  Lord  Lynd- 
liurst;  Sutton  v.  Devonjjort,  27  L.  J.  C.  P.  54;  Edmonds  v.  Fos- 
ter, 45  L.  J.  M.  C.  41;  Clifton  v.  United  States,  45  U.  S.  4  How. 
242,  11  L.  ed.  957;  New  York  Civ.  Code,  §  1852,  art,  0,  7. 

Mr.  Colby,  in  his  well  known  treatise  on  Criminal  Law,  under 
the  caption  above  indicated,  employs  the  following  pertinent  lan- 
guage: 

"Among  examples  of  this  nature  maybe  mentioned  the  common 
case  of  obliteration  of  marks  of  identity,  as  by  filing  away  the 
•engraving  from  articles  of  plate,  or  the  removal  or  endeavor  to 
remove  from  the  person  or  clothes  stains  of  blood  or  other  marks. 
The  shoeing  of  a  horse  backwards,  so  as  to  reverse  the  track.-,  and 
many  other  instances  of  the  obliteration  or  distortion  of  marks  of 
identity.     Wills,  Circ.  Ev.  75;  1  Whart.  Am.  Crim.  Law,  723." 

In  the  case  of  an  indictment  for  murder  by  poisoning,  the  con- 
tents of  the  stomach,  which  had  been  placed  in  a  jug  for  exami- 
nation, were  clandestinely  thrown  by  the  prisoner  into  a  vessel 
containing  a  large  quantity  of  water.  Upon  this  circumstance, 
the  learned  judge  commented  very  forcibly  in  his  charge  to  the 
jury.  "What  pretense,"  said  he,  "was  there  for  this?  And  if 
the  prisoner  did  it,  why  do  it  in  secrecy?  Why  place  the  jug  in  the 
precise  condition  in  which  it  was  left  by  the  medical  man?  Why 
not  allow  it  to  remain  in  the  situation  in  which  a  vessel  may  be 
placed  in  the  progress  of  such  an  examination."  JJonnaWs  Case, 
Frazier,  171. 

The  concealment  of  death  by  the  destruction  or  attempted 
destruction  of  human  remains  falls  within  the  same  classification. 
Bemis'  Webster  case,  471;  Bex  v.  Gardelle,  4  Celebrated  Trials, 
400. 

Prominence  among  the  cases  of  suppression  of  evidence  is  the 
attempt  to  prevent  post  mortem  examinations  by  the  premature 
interment  of  human  remains,  under  the  pretext  that  it  is  neces- 
sary by  the  state  of  the  body.  In  the  case  of  violent  or  sudden 
death,  and  especially  when   caused   by  poison,  it   cannot   but  be 


222  LAW    OF   EVIDENCE    IN    CRIMINAL   CASES. 

known  that  the  post  mortem  examination  will  always  furnish 
important  and  generally  conclusive  evidentiary  matter  as  to  the 
cause  of  death.  Besides  the  suppression,  destruction  and  fabrica- 
tion of  evidence  by  criminals,  which,  when  detected,  raises  a. 
strong  presumption  against  them,  facts  are  often  simulated  for  the 
purpose  of  attracting  suspicion  in  a  direction  different  from  the 
true  one.  Sometimes  the  object  of  simulated  facts  is  not  merely 
to  divert  suspicion  from  the  real  culprit,  but  also  to  attract  it 
t(  iward  a  particular  individual;  and  such  is  the  weakness  of  human 
nature  that  there  are  even  instances  where  innocence  has  degraded 
and  betrayed  itself  by  the  simulation  of  facts,  for  the  purpose  of 
evading  the  force  of  circumstances  of  apparent  suspicion.  Wills,. 
Circ.  Ev.  79-82;  Hex  v.  Coleman,  1  Remarkable  Trials,  162,  4 
Remarkable  Trials,  344. 


CHAPTER   XXVI. 
DUTY  OF  JURY  IN  WEIGHING  EVIDENCE. 

§  150.    What  Rides  Should  Govern. 

160.  A  Distinction  Noted. 

161.  Reconciling   Variances. 

162.  Review  of  an  Apt  Decision  in  the  United  States  Circuit  Court, 

163.  Notes  and  Memoranda  in  the  Jury  Room. 

164.  May  Return  into  Court  for  Information. 

165.  Instructions  as  to  Duty  in  Weighing  Evidence. 

166.  Relative  Weight  of  Positive  and  Negative  Testimony. 

167.  Nature  and  Scope  of  the  Scintilla  Doctrine. 

168.  Statement  of  the  Pennsylvania  Rule. 
160.    Views  of  Judge  Foster. 

§  159.  What  Rules  Should  Govern.— In  deliberating  upon 
the  evidence  adduced  in  the  trial  of  a  criminal  case,  the  jury 
should  keep  in  mind  one  cardinal  principle  that  is  occasionally 
overlooked.  It  is  the  wide  distinction  between  evidence  which 
tends  to  satisfy  an  intelligent  jury,  that  the  accused  has  perpe- 
trated a  crime,  and  such  evidence  as  merely  tends  to  raise  in  the 
mind  of  the  jury  a  suspicion  of  guilt.  People  v.  Williams,  29 
Hun,  520. 

The  question  as  to  the  weight  of  testimony  is  for  the  jury  ex- 
clusively, and  it  would  have  been  an  invasion  of  their  province 
for  the  judge  to  say  to  them  that  the  character  which  the  prisoner 
may  have  established  should  have  great  weight  with  them.  The 
utmost  that  could  be  asked  of  him  would  be  to  say  to  the  jury 
that  if  they  believed  that  the  prisoner  had  established  a  good 
character,  that  would  be  a  circumstance  to  be  taken  into  consid- 
eration by  them  in  forming  their  conclusion.  State  v.  Tarrant, 
24  S.  C.  593. 

Within  certain  limits,  the  judge  may  propose  to  the  jury  cer- 
tain rules  to  aid  them  in  weighing  the  evidence,  and  even  in  de- 
termining the  credibility  of  witnesses.  Thomp.  Trials,  §  2114, 
citing  O'JYeil  v.  State,  48  Ga.  G6;  McLean  v.  Clark,  47  Ga.  24; 
Poertner  v.  Poertm,er,  66  Wis.  644. 

Some  embarassment   arises   when  a  defendant  in  a  criminal 

99,3 


221  LAW    OF   EVIDENCE    IN    CRIMINAL   CASES. 

case  offers  himself  as  a  witness  in  his  own  behalf.  In  such  a  case 
it  is  the  duty  of  the  jury  to  give  his  evidence  all  the  credit  to 
which  it  is  entitled;  but,  in  ascertaining  the  extent  of  its  credi- 
bility it  is  proper  and  necessary  to  consider  the  situation  in  which 
he  is  placed.  A  person  accused  of  a  crime  may  speak  the  truth, 
and  it  is  for  the  jury  to  say,  in  view  of  all  the  facts  whether  or 
not  he  has  done  so  in  whole  or  in  part.  They  should  give  proper 
weight  and  effect  to  all  his  evidence,  if  they  are  convinced  of  its 
truth,  or  so  much  thereof  as  in  their  best  judgment  is  entitled  to 
credit.     State  v.  Slingerland,  19  Nev.  135. 

If  he  makes  conflicting  statements  as  to  material  facts,  a  charge 
by  the  court  that  if  the  jury  believe  that  such  witness  has  will- 
fully testified  falsely,  he  is  not  entitled  to  credit,  and  they  are 
authorized  to  disbelieve  his  entire  testimony,  is  proper. 

As  to  whether  it  would  be  proper  for  the  court  to  direct  the 
jury  to  wholly  disregard  the  testimony  of  a  witness  who  had  tes- 
tified to  a  willful  falsehood,  quaere.  Punlop  v.  Patterson,  5 
Cow.  213,  217;  People  v.  Evans,  10  K  Y.  1;  Peases.  Smith,  61 
K  Y.  177,  189;  Peering  v.  Metcalf,  71  K  Y.  503-505;  Punn  v. 
People,  29  K  Y.  523;  People  v.  Petmechj,  99  K  Y.  121;  Moett 
v.  People,  85  jS\  Y.  373;  The  Santissima  Trinidad  <&  The  St.  An- 
der,  20  U.  S.  7  Wheat.  338, 339,  5  L.  ed.  168;  Ruber  v.  Teuber,  3 
McArth.  185;  2  Starkie,  Ev.  873;  Sanders  v.  Leigh,  2  Harr.  & 
McH.  380;  Best,  Presumptions,  206. 

It  is  unquestionably  the  duty  of  the  jury  to  give  careful  and 
respectful  consideration  to  the  instructions  of  the  court,  in  every 
criminal  cause,  and  not  to  disregard  such  instructions,  except  for 
some  sufficient  reason  addressing  itself  to  their  judgment;  yet, 
when  the  time  for  their  ultimate  decision  upon  the  merits  of  the 
cause  is  reached,  they  have  the  right  to  determine  for  themselves 
the  law  as  well  as  the  facts  by  which  their  verdict  shall  be  gov- 
erned.    McPonald  v.  State,  63  Ind.  511. 

We  have  considered  what  evidence  is  necessary;  we  have  now 
to  consider  what  evidence  is  admissible  as  relevant  to  the  issue. 
Bearing  in  mind  all  that  has  been  said  as  to  the  nature  of  the 
issue  or  issues  raised  by  an  ordinary  criminal  pleading,  it  may  be 
laid  down  as  a  general  rule,  that  in  criminal,  as  in  civil  cases,  the 
evidence  shall  be  confined  to  the  point  in  issue.  In  criminal  pro- 
ceedings it  has  been  observed  (3  Russell,  Crimes  (5th  ed.)  368), 
that  the  necessity  is  stronger,  if  possible,  than  in  civil  cases,  of 


DUTY    OF   JURY    IN    WEIGHING    EVIDENCE.  225 

strictly  enforcing  this  rule;  for  where  a  prisoner  is  charged  with 
an  offense,  it  is  of  the  utmost  importance  to  him  that  the  facts 
laid  before  the  jury  should  consist  exclusively  of  the  transaction 
which  forms  the  subject  of  the  indictment,  and  matters  relating 
thereto,  which  alone  he  can  be  expected  to  come  prepared  to  an- 
swer. The  importance  of  keeping  evidence  within  certain  pre- 
scribed grounds  is  greater  now  than  before  the  alterations  in  crim- 
inal pleadings.     Roscoe,  Crim.  Ev.  92. 

We  have  elsewhere  adverted  to  the  duty  of  the  court  to  strike 
■out  improper  evidence  that  has  been  inadvertently  or  unadvisably 
received,  but  we  cannot  be  too  emphatic  in  reminding  the  prac- 
titioner that  evidence  of  this  character  when  accompanied  by  cir- 
cumstances likely  to  influence  a  jury  to  the  prejudice  of  the 
accused  is  not  deprived  of  its  obnoxious  qualities  by  being  merely 
stricken  from  the  record.  If  its  effect  is  evidently  pernicious  its 
reception  must  work  a  reversal.  There  is  a  conflict  upon  this 
jjoint  and  great  caution  should  be  exercised  in  instances  of  this 
nature.     People  v.  Zimmerman,  4  N.  Y.  Crim.  Rep.  272. 

The  jury  are  not  justified  in  disregarding  evidence  in  the  case, 
unless  there  is  some  reason  to  believe  there  is  some  unworthiness 
•or  turpitude  on  the  part  of  the  witness  offering  it. 

It  is  a  familiar  rule,  that  no  discredit  can  attach  to  a  testifying 
witness  in  the  absence  of  something  discrediting  to  his  character. 
J/,  ixsell  v.  Williamson,  35  111.  533;  Hartford  Life  c&  A.  Ins. 
Co.  v.  Gray,  SO  111.  28;  Chittenden  v.  Evans,  41  ill.  253.  The 
same  distinguished  court  is  also  authority  for  the  proposition  that 
the  weight  and  credibility  of  defendant's  testimony  in  a  criminal 
case,  must  depend  upon  the  testimony  of  the  witnesses  taken  in 
its  entirety;  and  as  to  the  duties  of  the  court  in  giving  proper  in- 
structions as  to  the  weight  and  credibility  of  this  testimony,  see 
Chambers  v.  People,  105  111.  414;  Bulliner  v.  People,  95  111.407; 
Bartholomew  v.  People,  104  111.  001,  44  Am.  Rep.  97. 

§  160.  A  distinction  Noted. — The  first  point  in  weighing 
•evidence  is  to  ascertain  whether  the  statements  to  which  the  wit- 
ness has  testified  are  facts  within  his  own  knowledge,  that  is, 
information  which  he  has  derived  through  the  medium  of  his  own 
senses,  or  whether  they  are  mere  beliefs  which  he  entertains, 
founded  upon  the  exercise  of  his  reasoning  powers,  ami  based 
npon  the  occurrence  of  other  facts  and  circumstances.  Colby, 
Crim.  Law,  chap.  4,  p.  100. 
15 


226  LAW    OF    EVIDENCE    IN    CRIMINAL    CASES. 

§  161.  Reconciling  Variances. — Where  the  testimony  of  di- 
rect witnesses  is  apparently  at  variance,  it  is  to  be  considered,  in. 
the  first  place,  whether  they  be  not  in  reality  reconcilable, 
especially  where  there  is  no  extrinsic  reason  for  suspecting  error 
or  fraud.  But,  if  their  statements,  upon  examination,  be  found 
irreconcilable,  it  becomes  an  important  duty  to  distinguish  between 
the  misconception  of  an  innocent  witness,  which  may  not  affect 
his  general  testimony,  and  willful  and  corrupt  misrepresentations 
which  destroy  his  credit  altogether.  The  presumption  of  reason 
as  well  as  of  law  in  favor  of  innocence  will  attribute  a  variance  in 
testimony  to  the  former  rather  than  to  the  latter  origin.  Partial 
incongruities,  discrepancies  in  testimony,  as  to  collateral  points, 
are,  as  has  been  already  observed,  to  be  expected;  and  it  is  for  a 
jury  to  determine  whether  in  the  particular  instance  they  are  of 
such  a  nature  and  character,  under  all  the  circumstances,  that 
they  may  be  or  cannot  be  attributed  to  mistake.  In  estimating 
the  probability  of  mistake  and  error,  and  also  in  deciding  on  which 
side  the  mistake  lies,  much  must  depend  on  the  natural  talents  of 
the  adverse  witnesses,  their  quickness  of  perception,  strength  of 
memory,  their  previous  habits  of  general  attention,  or  of  attention 
to  particular  subject  matters.     Starkie,  Ev.  (10th  Am.  ed.)  866. 

It  is  particularly  the  province  of  the  jury  to  determine  all  con- 
flicts in  the  evidence  of  a  criminal  trial,  and  this  rule  extends  to 
cases  where  a  witness  is  in  conflict  with  himself.  State  v.  Ad- 
ams, 7S  Iowa,  292. 

§162.  Review  of  an  Apt  Decision  in  the  United  States 
Circuit  Court. — The  entire  range  of  legal  literature  fails  to  dis- 
close a  more  felicitous  exposition  of  this  subject  than  that  con- 
tained in  the  opinion  of  Judge  McCormick,  in  the  case  of  United 
States  v.  Hughes.  The  case  is  reported  from  the  fifth  circuit. 
The  decision  was  handed  down  in  1888,  and  a  very  brief  review 
of  the  well  considered  paragraphs  will  disclose  its  rare  pertinency 
to  the  present  discussion.     His  honor  says: 

"  Each  juror  is  entitled  to  have,  and,  in  my  judgment,  is  bound 
to  thoughtfully  and  impartially  consider  the  argument  of  counsel, 
the  comments  of  the  judge,  and  the  views  of  his  fellow  jurors  and 
allow  all  these  such  influence  in  helping  him  to  a  satisfactory  con- 
clusion as  in  his  judgment  their  various  suggestions  deserve,  and 
honestly  to  strive  to  bring  his  own  mind  and  the  minds  of  his 
fellows  into  harmony,  so  that  the  jury  may  agree  upon  a  verdict,. 


DUTY"    OF   JURY    IN    WEIGHING    EVIDENCE.  227 

It  is  true  that  if,  in  any  given  case,  any  one  or  more  of  the  jury, 
after  an  earnest  and  impartial  consideration  of  all  these  matters 
proper  to  be  considered  in  weighing  the  evidence,  under  the  law 
applicable  thereto,  as  given  in  the  charge  of  the  court,  cannot 
bring  his  mind  or  their  minds  to  concur  in  the  conclusion  of  his 
or  their  fellows  as  to  the  guilt  or  innocence  of  the  accused,  each 
such  juror  not  only  may,  but  must,  adhere  to  the  final  and  fixed 
conclusion  of  his  own  mind,  for  it  is  the  logic  and  the  law  of  jury 
trials  that  the  twelve  minds  of  the  jury  must  actually  and  hon- 
estly concur  in  a  verdict,  before  a  verdict  can  rightly  be  rendered." 
United  States  v.  Hughes,  34  Fed.  Kep.  732: 

§  163.  Notes  and  Memoranda  in  the  Jury  Room. — The  court 
may  permit  the  jury,  upon  retiring  for  deliberation,  to  take  with 
them  any  paper  or  article  which  has  been  received  as  evidence  in 
the  cause,  but  only  upon  the  consent  of  the  defendant  and  the 
counsel  for  the  people.  The  jury  may  also  take  with  them  notes 
of  the  testimony  or  other  proceedings  on  the  trial,  taken  by  them- 
selves or  any  of  them. 

But  it  is  at  all  times  the  undoubted  policy  of  the  law  to  watch 
over  the  deliberations  of  the  jury,  and  to  guard  them  from  all 
impressions  and  influences  in  respect  to  the  issues  involved  not 
derived  from  a  trial  in  open  court,  in  the  presence  of  the  parties 
and  their  counsel,  where  ample  opportunity  is  given  to  object  to 
the  admission  of  any  evidence  or  comments  not  sanctioned  by 
the  law. 

Slight  circumstances  and  inconsiderable  observations  may  some- 
times influence  a  jurors  mind.  Watertown  Bank  ct>  Loan  Co.  v. 
Mix,  51  N.  Y.  561;  Schappner  v.  Second  Ave.  JR.  Co.  55  Barb. 
497. 

Private  communication  to  a  jury  is  very  properly  and  strongly 
condemned  by  Johnson,  J.,  in  Watertown  Bank  ci>  Loan  Co.  v. 
Mix,  supra.  The  burden  of  showing  improper  communications 
or  observations  in  writing  or,  otherwise,  should  not  be  thrown 
upon  a  defeated  party,  who  challenges  any  irregularity  occurring 
in  the  deliberation  hours  of  a  retired  jury.  Mitchell  v.  Carter, 
14  Hun,  448. 

§  164.  May  Return  into  Court  for  Information. — It  is  an 

elementary  principle  of  criminal  practice  that  the  jury  may,  after 
their  retirement,  return  into  court  to  receive  some  further  instruc- 
tions either  upon  the  evidence  or  as  to  some   point  of  law.     No 


22S  LAW    OF    EVIDENCE    IN    CRIMINAL    CASES. 

exception  can  be  based  upon  such  action  in  the  absence  of  any 
prejudice  shown  and  within  proper  limitation  such  action  should 
be  encouraged  as  leading  to  more  accurate  results  in  jury  trials. 
Drew  v.  Andrews,  8  Hun,  23;  State  v.  Pitts,  11  Iowa,  313;  Nelson 
v.  Dodge,  116  Mass.  367. 

§  165.  Instructions  as  to  Duty  in  Weighing  Evidence. — It 
is  competent  for  the  court  to  instruct  the  jury,  that  in  weighing 
the  evidence  of  the  accused,  they  could  consider  his  interest  in 
the  case.  In  Allen  v.  State,  87  Ala.  107,  in  reference  to  a  charge 
on  this  subject,  it  is  said :  "  The  court  should  not  have  gone 
further  in  this  connection,  than  to  instruct  the  jury  that,  in  deter, 
mining  the  weight  they  would  give  to  the  defendant's  testimony, 
they  should  consider,  along  with  other  circumstances  having  any 
bearing  on  the  matter,  the  fact  that  he  was  the  defendant."  Mor- 
ris v.  State,  87  Ala.  85. 

In  weighing  the  testimony  of  a  party,  and  passing  upon  its 
credibility,  the  jury  have  an  undoubted  right  to  consider  all  the 
circumstance  under  which  it  is  given,  including  his  particular  per- 
sonal interest  in  the  result  of  the  trial;  and  it  is  not  error  for  the 
court  to  remind  them  of  the  latter  circumstance,  provided  he 
refrains  from  intimating  or  suggesting  the  degree  of  weight  to  be 
given  it.  See  Bulliner  v.  People,  95  111.  391;  People  v.  Morrow^ 
60  Cal.  142;  Minich  v.  People,  8  Colo.  410. 

§  166.  Relative  Weight  of  Positive  and  Negative  Testi- 
mony.— It  is  a  rule  of  presumptions  that  ordinarily  a  witness 
who  testifies  to  an  affirmative  is  to  be  preferred  to  one  who  tes- 
tifies to  a  negative,  because  he  who  testifies  to  a  negative  may  have 
forgotten.  It  is  possible  to  forget  a  thing  that  did  happen.  It 
is  not  possible  to  remember  a  thing  that  never  existed.  Stitt  v. 
EuideJcoper,  84  U.  S.  17  Wall.  385,21  L.  ed.  644. 

The  distinction  between  positive  and  negative  testimony  may 
be  illustrated  thus :  it  is  positive  to  say  a  thing  did  or  did  not 
happen;  it  is  negative  to  say  that  a  witness  did  not  see  or  know 
of  its  having  happened.  Where  the  witnesses  are  equally 
credible,  positive  testimony  will  outweigh  negative  testimony. 
But  testimony  stated  in  a  negative  form  is  not  always  negative 
testimony;  thus,  where  a  witness  swears  positively  that  the  de- 
fendant did  not  strike  the  blow,  this  is  not  negative  testimony, 
but  is  entitled  to  equal  weight  with  the  testimony  of  another 
witness,  who   swears  that  he  did    strike.      Negative    testimony 


DUTY    OF   JUKY    IN    WEIGHING    EVIDENCE.  229 

may  sometimes,  however,  equal  positive  in  weight,  and  even 
exceed  it;  as  for  instance,  where  there  is  an  inherent  improbability 
in  the  positive  testimony.  Rapalje,  Crim.  Proc.  §  231,  citing-  Mc- 
Connell  v.  State,  67  Ga.  633;  Moon  v.  State,  68  Ga.  687;  Johnson 
v.  State,  14  Ga.  55;  Delk  v.  State,  3  Head,  79;  Coughlim  v. 
People,  18  111.  266,  68  Am.  Dec.  541.  See  Kapalje,  Witnesses, 
§193. 

The  weight  of  the  negative  testimony  depends  upon  the  obser- 
vation, whether  exhaustive  or  slight.  Murphy  v.  People,  90  111. 
59.  If  the  attention  of  the  negative  witness  is  concentrated  on  a 
particular  point,  his  testimony  may  outweigh  a  witness  who  swears 
affirmatively,  but  whose  attention  has  not  been  so  concentrated. 
Reeves  v.  Poindexter,  53  N.  C.  308;  Malone,  Crim.  Briefs,  p.  103. 

Full  and  conclusive  proof,  where  a  party  has  the  burden  of 
proving  a  negative,  is  not  required,  but  even  vague  proof,  or  such 
as  renders  the  existence  of  the  negative  probable,  is,  in  some  cases, 
sufficient  to  change  the  burden  to  the  other  party.  People  v. 
Pease,  27  K  Y.  45. 

§  167.  Nature  and  Scope  of  the  Scintilla  Doctrine. — De- 
cided cases  may  be  found,  where  it  is  held  that  if  there  is  a  scin- 
tilla of  evidence  in  support  of  a  case,  the  judge  is  bound  to  leave 
it  to  the  jury;  but  the  modern  decisions  have  established  a  more 
reasonable  rule,  to  wit :  that,  before  the  evidence  is  left  to  the 
jury,  there  is  or  may  be  in  every  case  a  preliminary  question  for 
the  judge,  not  whether  there  is  literally  no  evidence,  but  whether 
there  is  any  upon  which  a  jury  can  properly  proceed  to  rind  a  ver- 
dict for  the  party  producing  it,  upon  whom  the  burden  of  proof 
is  imposed.  Schuylkill  &  D.  Imp.  &  R.  Co.  v.  Munson,  81  U. 
S.  14  Wall.  448,  20  L.  ed.  872;  Pleasants  v.  Fant,  89  U.  S.  22 
Wall.  120,  22  L.  ed.  782;  Parks  v.  Ross,  52  U.  S.  11  How.  373, 
13  L.  ed.  735;  Merchants  Nat.  Bank  of  Boston  v.  State  Nat. 
Bank  of  Boston,  77  U.  S.  10  Wall.  637,  19  L.  ed.  1015;  Hick- 
man v.  Jones,  76  U.  S.  9  Wall.  201,  19  L.  ed.  553. 

Judges  are  no  longer  required  to  submit  a  case  to  the  jury 
merely  because  some  evidence  has  been  introduced  by  the  party 
having  the  burden  of  proof,  unless  the  evidence  be  of  such  a  char- 
acter that  it  would  warrant  the  jury  to  proceed  in  rinding  a  verdict 
in  favor  of  the  party  introducing  such  evidence.  Ryder  v. 
Wombwell,  L.  E.  4  Exch.  39. 

"A  jury  cannot  be  permitted  to  rind  there  is  evidence  of  a  fact 


230  LAW    OF    EVIDENCE    IN    CRIMINAL    CASES. 

where  there  is  not  any.  A  plaintiff  cannot  read  his  writ  to  the 
jury  and  claim  a  verdict  without  submitting  any  evidence.  Nor 
can  he  do  so  where  the  evidence  is  too  slight  or  trifling  to  be 
considered  or  acted  upon  by  a  jury.  The  evidence  must  have 
some  legal  weight.  There  is  no  practical  or  logical  difference 
between  no  evidence  and  evidence  without  legal  weight."  "The 
old  rule  that  a  case  must  go  to  the  jury  if  there  is  a  scintilla  of 
evidence  has  been  almost  everywhere  exploded.  There  is  no  ob- 
ject in  permitting  a  jury  to  find  a  verdict  which  a  court  would 
set  aside  as  often  as  found.  The  better  and  improved  rule  is,  not 
to  see  whether  there  is  any  evidence,  a  scintilla,  crumb,  or  dust  of 
the  scales,  but  whether  there  is  any  upon  which  a  jury  can,  in  any 
justifiable  view,  find  for  the  jury  producing  it,  upon  whom  the 
burden  of  proof  is  imposed."  Accordingly,  the  presiding  judge 
directs  a  non-suit  where  the  jury  would  not  be  authorized  for  the 
plaintiff  under  the  evidence  adduced.  Thomp.  Trials,  §  2149, 
citing  Connor  v.  Giles,  76  Me.  132;  Beaulieu  v.  Portland  Com- 
pany. IS  Me.  294;  Brown  v.  European  &  JV.  A.  B.  Co.  58  Me. 
384;  Rourke  v.  Bullens,  8  Gray,  549;  Pray  v.  Garcelon,  17  Me. 
145;  Head  v.  Sleeper,  20  Me.  311. 

As  late  as  1S85  the  Missouri  supreme  court  held  that  "whether 
there  is  any  evidence,  or  what  its  legal  effect  may  be,  is  to  be 
declared  by  the  court.  And  if  there  is  no  evidence  to  support  an 
issue,  it  is  the  duty  of  the  court  so  to  instruct  the  jury;"  but  "if 
there  is  any  evidence  it  must  go  to  the  jury,  who  are  exclusive 
judges  of  irs  weight  and  sufficiency,"  "however  slight  it  may  be, 
and  whether  direct  or  inferential."  Tested  by  this  rule,  let  us 
advert  briefly  to  the  character  and  nature,  force  and  effect  of  the 
plaintiff's  evidence,  and  also  to  the  position  and  relation  of  the  par- 
ties plaintiff  and  defendant,  to  each  other  and  to  the  title  and  pos- 
session of  the  premises  in  controversy.  Charles  v.  Patch,  S7  Mm. 
450.  It  should  be  added  that  the  courts  of  this  state  manifest  a 
very  strong  attachment  for  a  rule  that  is  abrogated  entirely  in 
many  jurisdictions.  This  attachment  is  evidenced  by  the  following 
authorities.  Says  v.  Bell,  10  Mo.  496;  Houghtaling  v.  Ball,  19 
Mo.  84,  59  Am.  Dec.  331;  Chambers  v.  McGiveron,  33  Mo.  202; 
Been  v.  Plant,  12  Mo.  60;  McEown  v.  Craig,  39  M<>.  156; Mat- 
thews v.  St.  Louis  Grain  Elevator  Co.  50  Mo.  149;  Chamberlain 
v.  Smith,  1  Mo.  482;  Speed  v.  Herrin,  4  Mo.  350;  Obouchon  v. 
Boon.  10  Mo.  41i';  Bobbins  v.  Alton  Marine  E.  Ins.  Co.  12  Mo. 


DUTY    OF   JURY    IN    WEIGHING    EVIDENCE.  231 

■380;  Dooly  v.  Jinnings,  6  Mo.  61;  Todd  v.  Boone  County,  8  Mo. 
•432;  Winston  v.  Wales,  13  Mo.  569;  Clark  v.  Hannibal  &  St.  J. 
R.  Co.  36  Mo.  202;  Lee  v.  David,  11  Mo.  114;  Meyer  v.  Pacific 
R.  Co.  40  Mo.  151;  Glasgow  v.  Cqpeland,  8  Mo.  268;  Hughes  v. 
Ellison,  5  Mo.  110;  Morton  v.  Reeds,  6  Mo.  64;  Emerson  v.  /Sft-wr- 
.<7<?<m,  IS  Mo.  170;  Rippey  v.  Friede,  26  Mo.  523;  Charles  v. 
Pafc//,  ST  Mo.  450;  i'YoW  v.  &*.  Zoms,  3  Mo.  App.  231. 

A  note  by  the  Hon.  Robert  Desty  appended  to  the  case  of 
People  v.  Peoples  Ins.  Exch.  2  L.  11.  A.  340,  collates  the  recent 
authorities  bearing  upon  this  subject  and  correctly  expresses  the 
principles  of  law  obtaining  with  reference  to  this  doctrine.  I  ap- 
pend a  paragraph  of  the  note  referred  to: 

"Formerly  it  was  held  that  if  there  was  what  was  called  a 
scintilla  of  evidence  in  support  of  a  case,  the  judge  was  bound  to 
leave  it  to  the  jury;  but  recent  decisions  of  high  authority  have 
established  a  more  reasonable  rule:  that,  in  every  case,  before  the 
evidence  is  left  to  the  jury,  there  is  a  preliminary  question  for  the 
judge,  not  whether  there  is  literally  no  evidence,  but  whether 
there  is  any  upon  which  a  jury  can  properly  proceed  to  find  a 
verdict  for  the  party  producing  it.  upon  whom  the  onus  of  proof 
rests.  Schuylkill  &  D.  Imp.  <A'  7?.  Co.  v.  Munson,  81  U.  S.  14 
Wall.  442.  20  L.  ed.  867;  Pleasants  v.  Fant,  89  U.  S.  22  Wall. 
120,  22  L.  ed.  782;  Marion  County  v.  Clark,  94  IT.  S.  2S4,  24  L. 
•ed.  61;  Griggs  v.  Houston,  104  U.  S.  553.  26  L.  ed.  840;  Bagley 
v.  Cleveland  Rolling  Mill  Co.  21  Fed.  Rep.  159;    Wittkowsky  v. 

Wasson,  71  N.  C.  451;  Dwight  v.  Germania  I.  Ins.  Co.  103  X. 
Y.  341,  57  Am.  Rep.  729;  Burke  v.  Witherlee,  98  N.  Y.  562; 
■Culhane  v.  New  York  Cent,  cfc  II.  R.  R.  Co.  60  X.  Y.  136;  Mc- 
Keever  v.  Hew  York  Cent.  &  II.  R.  R.  C0.88KY.  667.  Since 
the  scintilla  doctrine  is  exploded  both  in  England  and  this  coun- 
try, the  preliminary  question  for  the  court  is  not,  whether  there  is 
no  evidence  or  a  mere  scintilla,  but  whether  there  is  any  that 
ought  reasonably  to  satisfy  the  jury  that  the  fact  sought  to  be 
proved  is  established.     Hyatt  v.  Johnston,  91  Pa.  200;  Ryder  v. 

Wombwell,  L.  11.  4  Exch.  39;  ( 'odding  v.  Wood,  112  Pa.  371.  See 
note  to  Charon  v.  Geo.  W.  Roby  Lumber  Co.  66  Mich.  68. 
Where  there  is  anything  to  go  to  the  jury  the  case  should  be  sub- 
mitted [Marcott  v.  Marquette,  II.  &  O.  R.  Co. 47  Mich.  L);  so  it' 
different  minds  could  draw  from  the  evidence  different  conclu- 
sions.    Detroit  <&  M.  R.  Co.  v.   Van  Steinburg,   17  Mich.   99; 


232  LAW    OF    EVIDENCE    IN    CRIMINAL    CASES. 

Sioux  City  <&  P.  R.  Co.  v.  Stout,  84  IT.  S.  17  Wall.  657,  21  L. 
ed.  745."     See  Abbott,  Trial  Brief  (1885),  124. 

It  is  clearly  impossible  to  co-ordinate  into  any  mutual  relation 
of  unity  the  discordant  decisions  upon  this  subject  of  scintilla 
evidence.  The  rules  enforcing  the  observance  of  this  theory  have- 
proven  both  untenable  in  doctrine  and  vicious  in  practice  and 
should  be  ignored. 

a.  Statement  of  the  Pennsylvania  Rule. — Even  in  Pennsyl- 
vania where  the  principle  received  its  utmost  expansion,  the  more 
reasonable  rule  is  now,  as  stated  by  Mr.  Justice  Sharswood  in 
in  Howard  Exp.  Co.  v.  Wile,  04  Pa.  201,  that  "where  there  is 
any  evidence,  which  alone  would  justify  an  inference  of  a  dis- 
puted fact,  it  must  go  to  the  jury.  There  is  in  every  case  triable 
by  jury  a  preliminary  question  of  law  for  the  court,  whether  or 
not  there  is  any  evidence  from  which  the  fact  sought  to  be  proved 
may  be  fairly  inferred,  if  there  is,  that  is  sufficient  to  send  the 
case  to  the  jury,  no  matter  how  strong  may  be  the  proofs  to  the 
contrary.  It  is  unnecessary  to  cite  authorities  in  support  of  a 
principle  so  plain;  this  is  the  doctrine  now  generally  recognized, 
not  only  in  the  courts  of  this  and  the  sister  states,  but  also  in  the 
Federal  and  English  courts.  In  determining  the  sufficiency  of 
the  evidence,  the  court  must  of  course  take  it  as  true,  with  every 
reasonable  inference  favorable  to  him  who  has  the  burden  of 
proof.  Blakeslee  v.  Scott,  37  Phila.  Legal  Int.  474;  Sidney  School 
Furniture  Co.  v.  Warsaw  Twp.  School  JDist.  122  Pa.  494." 

b.  Views  of  Judge  Foster. — The  following  paragraph  from 
the  opinion  of  Mr.  Justice  Foster  of  the  Maine  supreme  judicial 
court  will  outline  the  juridical  view  now  in  the  ascendency  in 
that  jurisdiction.  The  reaction  from  the  Pennsylvania  view  is 
very  pronounced  : 

"Upon  a  careful  examination  of  the  evidence  in  the  case  under 
consideration,  we  are  satisfied  that  the  verdict  cannot  stand. 
There  is  not  sufficient  evidence  upon  which  a  jury  could  properly 
found  a  verdict  that  the  plaintiff  himself  was  in  the  exercise  of 
due  care  at  the  time  he  received  his  injury.  This  is  an  affirma- 
tive proposition  which,  in  this  state  and  many  of  the  others  it  is- 
incumbent  on  the  plaintiff  to  make  out  by  proof  before  he  could 
be  entitled  to  recover.  Dickey  v.  Maine  Teleg.  Co.  43  Me.  402; 
Lesan\.  Maine  Cent.  R.  Co.  77  Me.  87;  State  v.  Maine  Cent.  R. 
Co.  77  Me.  541;  Crafts  v.  Boston,  109  Mass.  521;  Taylor  v.  Carew 


DUTY    OF   JURY    IN    WEIGHING    EVIDENCE.  233 

Mfg.  Co.  140  Mass.  151.  Nor  will  this  proposition  be  sustained 
where  the  evidence  in  reference  to  it  is  too  slight  to  be  consid- 
ered and  acted  on  by  a  jury.  It  must  be  evidence  having  some 
legal  weight.  Such  are  the  general  doctrines  of  the  decisions. 
A  mere  scintilla  of  evidence  is  not  sufficient.  Connor  v.  Giles, 
76  Me.  134;  Riley  v.  Connecticut  River  R.  Co.  135  Mass.  292;. 
Corcoran  v.  Boston  &  A.  R.  Co.  133  Mass.  509;  Nason  v.  West, 
78  Me.  256,  and  cases  there  cited;  Cornman  v.  Eastern  Counties 
R.  Co.  4  Hurlst.  &  N.  784." 

The  old  rule  as  stated  by  Mr.  Justice  Sharswood  is  likewise 
exploded  in  several  of  the  states,  whose  courts  are  now  in  the 
constant  habit  of  ordering  nonsuits  against  the  complaint  of  the 
plaintiff  {Colt  v.  Sixth  Ave.  R.  Co.  49  N.  Y.  671;  Brown  v.  Eu- 
ropean &  N.  A.  R.  Co.  58  Me.  384),  of  giving  peremptory  in- 
structions to  the  jury  to  find  for  one  party  or  the  other  ( Witt- 
kowsky  v.  Wasson,  71  X.  C.  451;  Fort  Scott  Coal  &  Min.  Co.  v. 
Sweeney,  15  Kan.  244);  or  of  sustaining  demurrers  to  the  evidence, 
in  cases  where  there  is  confessedly  some  evidence  supporting  a 
material  issue.  This  is  done  under  the  guise  of  various  expres- 
sions, which  seem  to  leave  the  ancient  prerogative  of  the  jury 
intact.  In  Maryland,  and  perhaps  other  states,  the  judge  achieves 
this  result  by  determining  the  legal  sufficiency  of  the  evidence- 
(Cole  v.  Hebb,  7  Gill  &  J.  20);  and  in  Missouri  by  determining 
its  legal  effect.  Harris  v.  Woody,  9  Mo.  113.  See  Howard  v. 
Smith,  1  Jones  &  S.  128;  Myers  v.  Dixon,  45  How.  Pr.  48.  See- 
Thompson,  Charging  the  Jury,  §  30;  2  Bouvier,  Law.  Diet,  title 
Scintilla  of  Evidence.  It  should  be  added  that  the  drift  of  con- 
temporary legal  thought  seems  to  sustain  this  latter  view. 

Other  subdivisions  of  this  topic  will  be  found  discussed  in  2 
Rice,  Civil  Evidence,  p.  788  et  seq. 


CHAPTER  XXYII. 

EVIDENCE  ON  APPLICATION  FOR  A  NEW  TRIAL. 

■§  170.  Preliminary  Remarks. 

171.  Prevailing  Practice  Outlined. 

172.  In  what  Cases  Granted. 

173.  What  Evidence  Should  Show. 

174.  Doctrine  of  Anarchist's  Case  Stated. 

175.  Conflict  in  Evidence  Ground  for. 

176.  Insufficiency  of  the  Evidence  as  Ground  for. 

177.  Verdict  against  Weight  of  Evidence. 

178.  Neivly  Discovered  Evidence. 

179.  Admission  of  Illegal  Evidence  as  Ground  for. 

180.  Statements  of  Prosecuting  Attorney  of  Matters  not  in 

Evidence. 

181.  Failure  to  Object  to  the  Admission  of  Improper  Evidence 

no  Ground  for. 

182.  Doctrine  of  Invited  Error  Considered. 

183.  Technical  Errors  Disregarded  in  Motion  for. 

184.  Misconduct  of  Jury  as  Ground  for. 

185.  Evidence  of  Irregularity  in  the  Composition  of  the  Grand 

Ju  ry. 

186.  Evidence  of  the  Record  on  Appeal. 

a.  Rules  in  Admitting  and  Excluding  Evidence. 

b.  Consideration  of  the  Exceptions. 

c.  When  Exceptions  are  Deemed  Waived. 

§  170.  Preliminary  Remarks. — The  law  in  its  strenuous 
•efforts  to  meet  our  various  constitutional  requirements,  and  to 
.zealously  guard  the  rights  and  privileges  of  a  free  people  has  pre- 
scribed many  formulas  of  practice  that  it  is  beyond  the  scope  and 
nature  of  this  undertaking  to  even  outline.  Suffice  it  to  say  in 
this  connection,  that  where  these  rules  and  formulas  of  practice 
have  been  disregarded  and  arc  ruthlessly  ignored  by  the  presiding 
judge,  or  where  through  inadvertence  the  counsel  for  either  the 
defense  or  the  prosecution,  are  allowed  to  indulge  in  argumenta- 
tion unwarranted  by  the  evidence,  or  in  personalities  and  innuen- 
does prejudicial  to  the  defendant's  rights,  it  is  always  competent 
to  show  these  infractions  of  legal  methods  to  the  appellate  court, 
and  to  urge  their  consideration  as  grounds  fur  a  new  trial.     An 

234  ' 


EVIDENCE    ON    APPLICATION    FOR   A   NEW   TRIAL.  235 

•extended  familiarity  with  criminal  law  will  at  once  suggest  the 
importance  of  these  observations  and  the  incidents  of  any  extend- 
ed practice  are  doubtless  many  where,  upon  such  a  showing  made, 
the  court  of  review  has  come  to  the  relief  of  the  prisoner,  and 
rectified  a  manifest  wrong  in  the  interests  of  justice  and  human- 
ity. 

The  point  we  wish  to  emphasize  is  this:  Any  failure  to  care- 
fully observe  the  well  recognized  principles  of  criminal  practice 
in  the  conduct  of  the  trial  constitutes  reversible  error. 

But  the  courts  do  not  lend  an  attentive  ear  to  every  application 
for  a  review  of  the  former  verdict.  They  must  be  satisfied  that 
there  are  strong  probable  grounds  to  suppose  that  the  merits  have 
not  been  fairly  and  fully  discussed,  and  that  the  decision  is  not 
agreeable  to  the  justice  and  truth  of  the  case.  A  new  trial  is  not 
granted,  where  the  value  is  too  inconsiderable  to  merit  a  second 
examination.  It  is  not  granted  upon  nice  and  formal  objections 
which  do  not  go  to  the  real  merits.  It  is  not  granted  in  cases  of 
strict  right  or  summum  jits,  where  the  rigorous  exaction  of 
extreme  legal  justice  is  hardly  reconcilable  to  conscience.  Nov  is 
it  granted  where  the  scales  of  evidence  haTig  nearly  equal:  that 
which  leans  against  the  former  verdict  ought  always  very  strongly 
to  preponderate.     Chitty's  Bl.  Com.  chap.  24,  p.  301. 

The  records  of  our  appellate  courts  abundantly  establish  the 
proposition  that  by  far  the  most  serious  errors  of  the  trial  courts 
are  connected  with  the  charge  to  the  jury.  Error  in  this  respect 
is  a  prolific  source  of  disquietude  not  only  to  the  prosecution,  but 
in  many  instances  to  the  court  itself.  The  vagaries  of  the  differ- 
ent judges  even  in  the  contracted  sphere  of  definition  frequently 
leads  to  perplexing  and  anomalous  results,  and  it  is  by  no  means  in 
the  reception  of  improper  evidence,  or  in  the  rejection  of  a  perti- 
nent offer  to  prove  that  reversible  error  is  most  frequently  found. 
It  is  a  truism  which  needs  an  apology  for  restatement  that  it  is 
entirely  competent  to  show  any  error  in  the  presiding  court;  and 
any  evidence  which  is  calculated  to  disclose  such  error  is  always 
relevant  and  material,  provided  it  is  brought  to  the  attention  of 
the  reviewing  court  in  the  appropriate  and  appointed  manner. 
Indeed,  it  may  be  stated  that  this  duty  of  charging  the  jury  is 
rapidly  rising  into  co-ordinate  importance  with  the  most  intricate 
•topics  of  criminal  law. 

§  171.  Prevailing  Practice  Outlined. — The  prevailing  prac- 


236  LAW    OF    EVIDENCE    IN    CRIMINAL    CASES. 

tice  with  reference  to  new  trial  is  concisely  stated  in  the  recitals 
of  sections  462-466  inclusive  of  the  New  York  Code  of  Criminal 
Procedure.  The  provisions  of  this  enactment  are  reflected  in  sim- 
ilar statutory  provisions  in  every  state  of  the  American  Union. 
I  append  the  full  text  of  the  sections  referred  to. 

A  new  trial  is  the  re-examination  of  the  issue,  in  the  same  court,, 
before  another  jury,  after  a  verdict  has  been  given. 

The  granting  of  a  new  trial  places  the  parties  in  the  same  posi- 
tion as  if  no  trial  had  been  had.  All  the  testimony  must  be  pro- 
duced anew;  and  the  former  verdict  cannot  be  used  or  referred  to,, 
either  in  evidence  or  in  argument. 

§  172.  In  what  Cases  Granted. — The  court  in  which  a  trial 
has  been  had  upon  an  issue  of  fact  has  power  to  grant  a  new  trial 
after  a  verdict  has  been  rendered  against  the  defendant,  by  which 
his  substantial  rights  have  been  prejudiced,  upon  his  application,. 
in  the  following  cases: 

1.  When  the  trial  has  been  had  in  his  absence,  if  the  indict- 
ment be  for  a  felony; 

2.  When  the  jury  has  received  any  evidence  out  of  court,  other 
than  that  resulting  from  a  view,  as  provided  in  section  four  hun- 
dred and  eleven; 

3.  When  the  jury  have  separated  without  leave  of  the  court, 
after  retiring  to  deliberate  upon  their  verdict,  or  have  been  guilty 
of  any  misconduct  by  which  a  fair  and  due  consideration  of  the 
case  has  been  prevented; 

4.  When  the  verdict  has  been  decided  by  lot,  or  by  means  other 
than  a  fair  expression  of  opinion  on  the  part  of  all  the  jurors; 

5.  When  the  court  has  misdirected  the  jury  in  a  matter  of  law,. 
or  has  refused  to  instruct  them  as  prescribed  in  section  four  hun- 
dred and  twenty;  and  the  defendant  has,  at  the  trial,  excepted  to- 
such  misdirection  or  refusal; 

6.  When  the  verdict  is  contrary  to  law  or  clearly  against  evi- 
dence; 

7.  When  it  is  made  to  appear,  by  affidavit,  that  upon  another 
trial,  the  defendant  can  produce  evidence  such  as  if  before  received 
would  probably  have  changed  the  verdict;  if  such  evidence  has 
been  discovered  since  the  trial,  is  not  cumulative,  and  the  failure 
to  produce  it  on  the  trial  was  not  owing  to  want  of  diligence. 

§  173.  What  Evidence  Should  Show. — To  entitle  the  accused 
to  a  new  trial  the  evidence  must  clearly  show  that  the  result. 


EVIDENCE    ON    APPLICATION    FOR    A    NEW    TRIAL.  237 

reached  by  the  trial  court  was  unwarranted  by  the  evidence  and 
hence  affects  the  substantial  merits  of  the  case.  Wilson  v.  People, 
94  111.  327;  Calhoun  v.  O'Neal,  53  111.  354;  Leach  v.  People,  53 
111.  311;  Perteet  v.  People,  70  111.  171. 

§171.  Doctrine  of  Anarchist's  Case  Stated. — "The  tend- 
•encv  of  legislation,  as  well  as  the  decisions  of  the  courts,  is  to  have 
legal  controversies  of  all  kinds  disposed  ©f  on  their  merits,  and 
not  upon  mere  technicalities."     Petty  v.  People,  118  111.  157. 

This  doctrine  is  fully  stated  by  Mr.  Justice  Mulkey  in  his 
opinion  in  the  famous  case  of  Spies  v.  People,  122  111.  266.  He 
uses  the  following  language  : 

"  I  desire  to  avail  myself  of  this  occasion  to  say  from  the  bench 
that  while  I  concur  in  the  conclusion  reached,  and  also  in  the 
general  view  presented  in  the  opinion  tiled,  I  do  not  wish  to  be 
understood  as  holding  that  the  record  is  free  from  error,  for  I  do 
not  think  it  is.  I  am  nevertheless  of  opinion  that  none  of  the 
errors  complained  of  are  of  so  serious  a  character  as  to  require  a 
reversal  of  the  judgment. 

"In  view  of  the  number  of  defendants  on  trial,  the  gnat 
length  of  time  it  was  in  progress,  the  vast  amount  of  testimony 
offered  and  passed  upon  by  the  court,  and  the  almost  numberless 
rulings  the  court  was  required  to  make,  the  wonder  with  me  is 
that  the  errors  are  not  more  numerous  and  more  serious  than 
they  are.  In  short,  after  having  carefully  examined  the  record 
and  giving  all  the  questions  arising  upon  it  my  very  best  thought, 
with  an  earnest  and  conscientious  desire  to  faithfully  discharge 
my  whole  duty,  I  am  fully  satisfied  that  the  conclusion  reached 
vindicates  the  law,  does  complete  justice  between  the  prisoners 
and  the  state,  and  that  it  is  fully  warranted  by  the  law  and  the 
evidence." 

An  inward  persuasion  has  long  been  diffusing  itself  and  now 
and  then  comes  to  utterance  that  the  criminal  classes  of  this 
country  have  been  accorded  too  great  a  leniency  in  the  universal 
habit  hitherto  prevailing  of  reversing  the  verdict  upon  the  appear- 
ance of  the  least  technical  error  in  the  record.  We  cannot  regard 
with  indifference  that  which  has  such  high  claims  to  a  favorable 
consideration  as  does  any  well  considered  utterance  of  this  exceed- 
ingly able  court  and  if  the  views  of  the  last  paragraph  were  gen- 
erally adopted,  justice  would  be  better  served  and  crime  more 
•effectually  punished. 


23S  LAW    OF    EVIDENCE    IN    CKIMINAL    CASES. 

§  175.  Conflict  in  Evidence  Ground  for.— In  very  many,  if 
not  most,  criminal  cases,  there  is  a  conflict  of  evidence  upon 
material  facts.  It  is  primarily  the  province  and  duty  of  the  jury 
to  determine  where  the  truth  lies.  There  must,  according  to- 
settled  principles  of  criminal  law,  be  a  preponderance  of  evidence 
against  the  defendant,  to  authorize  a  conviction.  It  is  the  duty 
of  juries  to  be  guided  by  this  "rule.  But  on  which  side  is  the  pre- 
ponderance of  evidence  cannot  be  determined  by  fixed  rules. 

It  must  be  left  to  the  good  sense  of  the  jury,  under  proper 
instructions  as  to  the  law,  to  determine  the  question.  The  court 
may  entertain  some  doubt,  and  in  case  of  serious  doubt,  especially 
in  a  criminal  case,  it  may  order  a  new  trial.  But  the  mere  fact 
that  there  is  a  conflict  in  the  evidence  is  not  alone  sufficient. 
The  court  must  reach  the  conclusion  that  injustice  has  probably 
been  done  on  the  trial  before  it  is  justified  in  setting  aside  the 
verdict. 

§  176.  Insufficiency  of  the  Evidence  as  Ground  for. — An 
appellate  court  is,  as  a  rule,  reluctant  to  set  aside  a  verdict  on  the 
ground  of  the  insufficiency  of  the  evidence.  Insufficiency  of  the 
evidence  is  frequently  alleged  with  nothing  whatever  to  support 
the  allegation.  And  should  the  appellate  court  favor  this  charge 
of  insufficiency  the  final  determination  of  a  criminal  cause  would 
be  indefinitely  postponed.  If  the  evidence  tends  to  prove  that 
the  intent  was  as  alleged  in  the  indictment,  the  verdict  will  not 
be  disturbed  on  the  ground  that  the  evidence  failed  to  support 
the  verdict.  People  v.  Connor,  126  1ST.  Y.  278;  People  v. 
Estrada,  53  Cal.  601;  Fry  v.  Com.  82  Va.  334;  Bailey  v.  Com. 
82  Va.  107;  Glover  v.  Com,  86  Va,  382.  See  Am.  Dig.  1890,  p. 
3284,  §§  53-55;  People  v.Zenon,  79  Cal.  626.    This  much  is  clear. 

"When  the  evidence  is  insufficient  in  law  to  support  a  verdict, 
the  refusal  of  the  court  to  so  instruct  the  jury,  is  good  ground 
for  a  new  trial.  Chase  v.  Breed,  5  Gray,  443;  Com.  v.  Merrill, 
14  Gray,  418,  77  Am.  Dec.  336;  Com.  v.  Packard,  5  Gray,  101: 
Denny  v.  Williams,  5  Allen,  4;  Polley  v.  Lenox  Iron  Works,  4 
Allen,  329. 

And  similarly  if  the  evidence  in  support  of  a  criminal  prosecu- 
tion is  so  defective  or  so  weak  that  a  verdict  of  guilty  based  upon 
it  cannot  be  sustained,  the  jury  should  be  instructed  to  return  a. 
verdict  of  not  guilty.  Such  a  case  arises  when  there  is  a  material 
variance  between  the  allegations  and  the  proof. 


EVIDENCE    ON    APPLICATION    FOR   A    NEW    TKIAL.  239' 

In  statutory  form  the  rule  assumes  this  language : 

"  If,  at  any  time  after  the  evidence  on  either  side,  is  closed,  the 
court  deem  it  insufficient  to  warrant  a  conviction,  it  may  advise 
the  jury  to  acquit  the  defendant  and  they  must  follow  the  advice." 
N.  Y.  Code  Crim.  Proc.  §  410. 

The  same  strictness  in  regard  to  exceptions  will  not  be  enforced 
in  criminal  as  in  civil  cases;  but  the  court  will  look  at  the  sub- 
stance, with  the  view  to  promote  justice.  A  motion  in  form  for 
the  absolute  discharge  of  a  prisoner  may  be  regarded,  as  in  sub- 
stance, a  request  to  direct  an  acquittal,  or  that  the  court  instruct 
the  jury,  as  matter  of  law,  that  the  prisoner  could  not  be  con- 
victed.    People  v.  Bennett,  49  K  Y.  137. 

"  I  can  see  no  reason,  why  the  court  may  not,  in  a  case  present- 
ing a  question  of  law  only,  instruct  the  jury  to  acquit  the  prisoner, 
or  to  direct  an  acquittal,  and  enforce  the  direction,  nor  why  it  is 
not  the  duty  of  the  court  to  do  so.  This  results  from  the  rule 
that  the  jury  must  take  the  law  as  adjudged  by  the  court,  and  I 
think  it  is  a  necessary  result.  It  follows  that  a  refusal  to  give 
such  instruction  or  direction  in  a  proper  case  is  error."  Church, 
J.,  in  People  v.  Bennett,  supra. 

The  familiar  rule,  that  an  appellate  court  will  not  disturb  a 
verdict  unless  it  is  palpably  against  the  evidence,  must  be  re- 
stricted to  civil  cases.  To  say,  that  in  a  criminal  ease  especially 
one  involving  a  capital  offense,  such  a  rule  should  be  indulged  is 
in  effect  saying  that  the  judgments  of  the  Palatine  Hill  and  of 
the  Leteran  Palace  should  be  substituted  for  a  "  verdict  by  his 
peers."  Folk  v.  People,  42  111.  331;  State  v.  Sopher,  70  Iowa, 
494;  Owens  v.  State,  35  Tex.  361;  People  v.  Kohler,  49  Mich. 
324;  Turner  v.  State,  3S  Tex.  169;  State  v.  Miller,  10  Minn.  313; 
State  v.  Well,  41  Tex.  68;  Manuel  v.  People,  48  Barb.  548; 
Copeland  v.  State,  7  Humph.  479;  People  v.  Lewis,  36  Cal.  531; 
Cochran  v.  State,  7  Humph.  544;  State  v.  Packwood,  26  Mo. 
340;  Leake  v.  State,  10  Humph.  144;  Sargent  v.  L*eople,  64  111. 
327;  State  v.  Tomlinson,  11  Iowa,  401;  Milton  v.  State,  6  Neb. 
138.  In  the  two  last  above  cases  the  judgments  were  reversed, 
because  there  was  not  sufficient  evidence  of  deliberation  and  pre- 
meditation. 

Formerly  in  criminal  cases  courts  should  not  grant  new  trials 
on  such  grounds.  Now,  by  the  express  terms  of  the  law,  a  mo- 
tion lor  that  purpose  can  be  made,  and  an  appeal   from  the  judg- 


240  LAW    OF    EVIDENCE    IN    CRIMINAL    CASES. 

meiit  brings  up  for  review  the  decision  of  such  motion  as  well  as 
the  proceedings  upon  the  trial.  The  power  of  interfering  with 
the  verdict  in  a  criminal  case  is  doubtless  to  be  exercised  with 
caution,  especially  where  the  question  of  fact  to  be  determined  is 
one  incapable  of  direct  proof  and  only  to  be  established  by  infer- 
ence from  other  facts.     People  v.  Mangano,  29  Hun,  259. 

A  conviction  that  is  clearly  against  the  weight  of  evidence  dis- 
closes fatal  defects,  and  will  be  set  aside  on  appeal.  State  v. 
Lyon,  12  Conn.  487;  People  v.  San  Martin,  2  Cal.  484;  State  v. 
Anderson,  2  Bail.  L.  565;  Lewis  v.  Payn,  4  Wend.  423;  State  v. 
Bird,  1  Mo.  417;  Murray  v.  Rable,  4  Hayw.  (Tenn.)  203;  Ball 
v.  Com.  8  Leigh,  726;  Haynes  v.  Wright,  4  Hayw.  (Tenn.)  63; 
Bedford  v.  State,  5  Humph.  553;  State  Bank  v.  Holcomb,  12  N. 
J.  L.  219;  Com.  v.  Briggs,  5  Pick.  429;  Oram  v.  Bishop,  12  N. 
J.  L.  177;  H'Ayrolles  v.  Howard,  3  Burr.  1385;  Coffin  v.  Phoe- 
nix Ins.  Co.  15  Pick.  291;  Bex  v.  Maiden,  4  Burr.  2135;  Ham- 
mond v.  Wadhams,  5  Mass.  353;  Copeland  v.  State,  7  Humph. 
479;  Wait  v.  M'Neil,  7  Mass.  261;  Curtis  v.  Jackson,  13  Mass. 
507;  Bartholomew  v.  Clark,  1  Conn.  472;  Kinne  v.  Kinne,  9 
Conn.  102;  Talcott  v.  Wilcox,  9  Conn.  134;  Bacon  v.  Parker,  12 
•Conn.  212;  Lloyd  v.  Newell,  8  N.  J.  L.  365;  Mann  v.  Clifton,  3 
Blackf.  304;  Hoagland  v.  Moorey  2  Black!  167;  Daniel  v.  Pra- 
thcr,  1  Bibb,  4S4;  ,SWe  v.  Sims,  2  Bail.  L.  29;  Bespublica  v.  Za- 
mze,  2  IT.  S.  2  Dall.  118,  1  L.  ed.  313;  Corbettv.  Brown,  8Bing. 
33;  Z-wfe  r  v.  Gelgar,  2  Yeates,  522;  G^fe  v.  Tucker,  2  A.  K. 
Marsh.  219;  Hughes  v.  Howard,  3  Har.  &  J.  9;  Newson  v.  Z_</- 
£<m,  3  J.  J.  Marsh.  440;  Far  rant  v.  Olmius,  3  Barn.  &  A.   692. 

Bapalje  says  :  "If  there  is  any  evidence  to  sujjport  the  verdict 
the  appellate  court  will  not  interfere.  Russell  v.  State,  68  Ga. 
785.  A  judgment  of  conviction  will  not  be  reversed  merely  be- 
cause the  jury  disregarded  irreconcilable  evidence;  {King  v.  State, 
4  Tex.  App.  256,  30  Am.  Eep.  160;  Jones  v.  State,  5  Tex.  App. 
86;  Sattk  rwhite  v.  State,  6  Tex.  App.  609)  or  because  of  a  conflict 
of  evidence.  Murphy  v.  State,  15  .Neb.  383.  To  warrant  a  re. 
versal  the  evidence  must  preponderate  against  the  verdict  {Bob- 
ertson  v.  State,  4  Lea.  425;  Fitzhugh  v.  State,  13  Lea,  258)  and 
even  then  a  reversal  does  not  necessarily  follow.  State  v.  Quin- 
ton,  59  Iowa,  362.  Where  the  verdict  finds  defendant  guilty  of 
one  oflense  and  the  evidence  indicates  another,  the  conviction 
will  be  reversed  {State  v.  Craft,  72  Mo.  456),  as  it  will  be  when 


EVIDENCE   ON   APPLICATION    FOK   A    NEW    TRIAL.  241 

■evidently  founded  on  mere  suspicion  of  guilt  not  upheld  by  the 
evidence.  Morrison  v.  /State,  13  Neb.  527."  Rapalje,  Crim. 
Proc.  §408. 

The  authorities  are  simply  overwhelming,  that  in  a  criminal 
case,  and  more  especially  in  a  capital  case,  the  verdict  will  be  set 
aside  when  it  is  contrary  to  the  weight  of  evidence.  The  rule 
that  the  court  will  not,  on  appeal,  set  aside  a  verdict  on  the 
ground  that  the  evidence  is  not  sufficient  to  sustain  it,  has  been 
generally  adopted  in  civil  cases.  But  that  rule  has  never  been 
recognized  in  a  capital  case.  In  State  v.  Hunsaker,  10  Or.  497,  the 
opinion  is  expressed,  without  deciding  the  point,  that  the  power 
of  the  court,  in  criminal  cases,  to  look  into  the  evidence  to  see 
whether  the  verdict  is  justified  by  it  or  not,  is  beyond  doubt; 
and  in  State  v.  McGinnis,  17  Or.  332,  the  court  felt  it  a  duty,  in- 
asmuch as  it  was  a  capital  case,  to  examine  the  record  and  see 
whether  there  was  any  error  or  any  ground  whatever  for  the  ap- 
peal, although  the  usual  practice  would  have  been  to  affirm  the 
judgment,  there  being  no  brief  nor  appearance  on  appeal.  In 
Anderson  v.  State,  43  Conn.  514,  where  there  was  a  conviction  of 
murder  in  the  first  degree,  the  court  directs  a  new  trial,  and  says: 
"If  we  are  to  make  a  rigid  application  of  the  rules  which  govern 
the  superior  court  in  civil  causes,  we  should  doubtless  advise  that 
a  neAv  trial  should  be  denied;  but  in  a  case  where  a  human  life  is 
at  stake,  justice,  as  well  as  humanity,  requires  us  to  pause  and 
consider  before  we  apply  those  rules  in  all  their  rigor. 

In  State  v.  Clements,  15  Or.  243,  which  was  not  a  capital  case, 
the  court  say  the  sufficiency  of  the  evidence  to  sustain  the  verdict 
will  be  considered  on  appeal  when  the  point  is  presented  by  ex- 
ception. In  a  capital  case,  however,  the  court  will  review  the 
instructions  that  were  given,  although  no  exceptions  were  taken 
or  saved  to  the  rulings  of  the  court  by  the  defendant.  State  v. 
Paekwood,  20  Mo.  341;  Folk  v.  P«  ople,  42  111.  335.  And  so  too 
where  the  defendant's  counsel  did  not  ask  the  court  to  charge  the 
jury  as  they  should  have  been  charged,  and  the  court  doubted 
whether  the  question  was  presented  so  that  it  could  consider  it, 
nevertheless,  the  case  being  a  capital  one,  the  court  did  consider 
it  and  reversed  the  judgment.  State  v.  Johnson,  40  Conn.  1  li'; 
People  \.  Levison,  1»>  Cal.  ,.,'.,.  7*'>  Am.  Dec.  505.  In  People  v. 
Bowers,  79  Cal.  41."),  a  very  recent  California  case,  the  court  re- 
viewed the  evidence  in  a  capital  case,  where  it  was  conflicting, 
10 


24:2  LAW    OF    EVIDENCE    IN    CRIMINAL    CASES. 

and  granted  a  new  trial.  State  v.  Forsythe,  89  Mo.  6G9;  Penn- 
sylvania It.  Co.  v.  Zebe,  33  Pa.  318. 

The  appellate  court  will  refuse  to  entertain  a  motion  for  a  new 
trial  on  the  ground  of  the  insufficiency  of  evidence,  when  it  ap- 
pears that  some  proof  was  offered  in  the  court  below  which  tends 
to  sustain  the  verdict  rendered.  This  is  well  settled  law.. 
Wherever  there  is  some  evidence  to  sustain  the  material  points  of 
the  indictment,  there  will  be  no  reversal  of  the  verdict.  This 
position  has  been  reaffirmed  as  late  as  1891  by  the  appellate  court 
of  Indiana  in  the  case  of  Baker  v.  State,  2  Ind.  App.  517. 

§177.  Verdict  against  Weight  of  Evidence.  —  In  Ross  v. 
Overton,  3  Cal.  309,  2  Am.  Dec.  552,  Judge  Koane,  delivering 
the  resolution  of  the  whole  court,  laid  down  the  principle  (in  lan- 
guage which  has  since  been  cited  and  approved  in  many  cases) 
thus :  A  new  trial,  on  the  ground  that  the  verdict  is  contrary  to 
evidence,  "ought  to  be  granted  only  in  case  of  a  plain  deviation, 
and  not  in  a  doubtful  one,  merely  because  the  court,  if  on  the 
jury,  would  have  given  a  different  verdict;  since  that  would  be  to 
assume  the  province  of  the  jury,  whom  the  law  has  appointed  the 
triers."  In  Brugh  v.  Shanks,  5  Leigh,  598,  Judge  Carr,  after  quot- 
ing the  above  language  of  Judge  Roane,  says :  "These  remarks  are 
applied  to  the  court  which  presides  at  the  trial,  and  has  all  the 
advantages  (possessed  by  the  jury)  of  seeing  and  hearing  the 
witnesses;  how  much  more  strongly  do  they  apply  to  an  appellate 
court,  deprived  of  these  all  important  aids  in  eviscerating  truth  I 
But  here  they  apply  to  a  multo  fortiorari;  for  not  only  have  the 
triers  appointed  by  law  found  the  verdict,  but  the  court  which 
heard  the  witnesses  has  refused  the  new  trial.  In  such  a  case  the 
'deviation'  must  be  gross  and  palpable  indeed,  before  I  could 
asree  to  interfere  with  the  verdict." 

Upon  an  application  of  this  kind  the  appellate  court  is  always 
loth  to  disturb  the  judgment  of  the  court  below.  On  this  point, 
Christian,  J,  delivering  the  opinion  in  Pryor  v.  Com.  27  Gratt. 
1010,  said  :  "We  should  act  with  great  caution  in  granting  new 
trials  in  cases  where  the  new  trial  is  asked  solely  upon  the  ground 
that  the  verdict  is  contrary  to  the  evidence,  and  great  weight  is 
always  given  and  justly  so,  to  the  verdict  of  the  jury  and  judg- 
ment of  the  court  in  which  the  case  is  tried.  The  cases  are  very 
rare  in  which  this  court  interferes,  and  it  is  only  in  a  case  where 
the  evidence  is  plainly  insufficient  to  warrant  the  finding  of  the- 
jury."     McDomiel  v.  Com.  77  Ya.  281. 


EVIDENCE    ON    APPLICATION    FOE    A    NEW    TKIAL.  243 

It  is  not  enough  to  justify  interference  with  the  verdict  that 
the  court  on  the  case  before  it  can  see  that  the  evidence  made  the 
case  a  conflicting  or  doubtful  one,  demanding  the  solution  of  a 
verdict  to  settle  the  doubt  or  conflict;  but  it  must  be  quite  appar- 
ent that  the  conflict  has  been  settled  by  a  verdict  against  the  sub- 
stantial and  preponderating  weight  of  evidence. 

It  was  said  by  Brady,  J.,in  People  v.  Panniza,  JS".  Y.  (not  rep.) 
that  "justice  requires  a  new  trial  whenever  the  court  can  perceive 
in  reviewing  all  the  evidence,  either  that  a  verdict  of  acquittal 
should  have  been  rendered  or  that  the  jury  were  led  by  reason  of 
prejudice  into  convicting  the  defendant  of  a  grade  of  offense 
altogether  unwarranted  by  the  evidence."  See  also  Prather  v. 
Com.  85  Ya.  122.  It  is  perhaps  superfluous  to  add  that  where 
the  verdict  is  wholly  unsupported  by  the  evidence  the  appellate 
court  will  reverse.     State  v.  Hunt,  91  Mo.  490. 

"Where  one  was  convicted  of  an  assault  on  his  wife  with  intent 
to  kill  and  murder  her,  and  the  proof  was  clear  that  the  accused 
did  shoot  his  wife,  it  was  held,  that  the  question  whether  the 
shooting  was  an  accident,  or  was  intentional,  was  a  question  of 
fact  for  the  jury;  and  that  when  they  have  settled  that  fact 
adversely  to  the  defendant,  without  passion  or  prejudice,  in 
accordance  with  the  evidence,  it  was  not  the  province  of  an  appel- 
late court  to  disturb  the  verdict.     Dunn  v.  People,  109  111.  635. 

§  178.  Newly  Discovered  Evidence. — After  discovered  evi- 
dence, in  order  to  afford  a  proper  ground  for  the  granting  of  a 
new  trial,  must  possess  the  following  qualifications: 

It  must  have  been  discovered  since  the  former  trial. 

It  must  be  such  that  a  reasonable  diligence  on  the  part  of  the 
defendant  could  not  have  secured  it  at  the  former  trial. 

It  must  be  material  in  its  object,  and  not  merely  cumulative 
and  corroborative,  or  collateral. 

It  must  be  such  as  ought  to  produce,  on  another  trial,  an  oppo- 
site result  on  the  merits. 

It  must  go  to  the  merits,  and  not  rest  on  merely  a  technical 
defense.  State  v.  Carr,  21  1ST.  IT.  166;  Com.  v.  Murray,  2  Ashm. 
41;  Com.  v.  Williams,  2  Ashm.  69;  Thompson  v.  Com.  8  Gratt. 
637;  Read  v.  Com.  22  Gratt,  924;  Carter  v.  State,  1«;  Ga.  637; 
State  v.  Burnside,  37  Mo.  343;  State  v.  Wyatt,  50  Mo.  309;  Moore 
v.  Philadelphia  Bank,  5  Serg.  &  R.  41;  Whart.  Crim.  PI.  &  Pr. 
§  855. 


244  LAW    OF    EVIDENCE    IN    CRIMINAL    (MSES. 

"Where  the  refusal  to  grant  a  new  trial  on  the  ground  of  newly 
discovered  evidence  is  a  matter  largely  within  the  discretion  of 
the  trial  court,  yet,  if  it  appears  that  the  evidence  is  material,  and 
could  not  have  been  discovered  with  reasonable  diligence,  the 
supreme  court  will  reverse  the  ruling.  "Where  the  object  of  evi- 
dence is  to  prove  an  alibi,  the  rule  making  newly  discovered 
cumulative  evidence  insufficient  to  command  a  new  trial  has  no 
application.     State  v.  Stowe,  14  L.  R.  A.  609,  3  Wash.  206. 

New  trials  for  newly  discovered  evidence  ought  only  to  be 
granted  after  the  most  careful  scrutiny  of  the  evidence  alleged  to 
have  been  discovered,  and  when  it  raises  a  violent  presumption 
that  a  different  result  would  i)e  reached  upon  a  second  trial. 
Thomp.  Trials,  §  2759;  Pines  v.  Driver ',  100  Ind.  315;  Cooper  v. 
State,  120  Ind.  377. 

A  new  trial  should  not  be  granted  upon  the  application  of 
defendant,  where  the  alleged  newly  discovered  evidence  is  incon- 
sistent  with  the  testimony  of  the  defendant  on  the  former  trial. 
People  v.  Jlovey,  1  1ST.  Y.  Grim.  Rep.  324.  And  evidence  which 
existed  and  was  known  to  defendant  before  the  former  trial  can- 
not be  considered  newly  discovered,  because  he  has  since  discov- 
ered that  it  might  have  been  important  if  used  on  the  trial.  Peo- 
ple v.  Ilovey,  supra.  So  if  the  accused  relies,  for  the  purpose  of 
proving  the  character  of  the  crime,  upon  the  condition  of  his 
mind  at  the  time  of  doing  the  act,  he  must  proceed  upon  the  trial 
to  establish  that  condition  by  the  production  of  all  the  evidence 
bearing  upon  the  question  within  his  knowledge,  or  which  he 
could  have  procured  by  proper  diligence.  And.  although  there 
was  the  grossest  laches,  still,  if  the  evidence  was  important,  the 
court,  in  a  case  in  which  human  life  is  at  stake,  should  be  very 
guarded  in  depriving  the  prisoner  of  the  slightest  right  he  may 
possess.  Evidence  merely  cumulative  in  its  character,  can  never 
afford  proper  ground  for  a  new  trial.  People  v.  Piles,  5  West 
Coast  Rep.  829;  State  v.  Hyland,  19  West  Coast  Rep.  622. 

§  179.  Admission  of  Illegal  Evidence  as  Ground  for. — The 
reception  of  illegal  evidence  is  presumptively  injurious  to  the 
other  party  objecting  to  its  admission;  but  where  the  presumption 
is  repelled,  and  it  clearly  appears,  on  examination  of  the  whole 
record,  beyond  the  possibility  of  rational  doubt,  that  the  result 
would  have  been  the  same  if  the  objectionable  proof  had  been 
rejected,  the  error  furnishes  no  ground  for  reversal.     Many  of  the 


EVIDENCE    ON    APPLICATION    FOR   A   NEW    TRIAL.  245 

earlier  cases  in  New  York  favored  a  departure  from  the  English 
rule  on  this  subject,  and  maintained  that  it  was  impossible  to 
determine  whether  the  evidence  improperly  received  might  not 
have  had  a  controlling  influence  upon  the  jury.  Marquand  v. 
Webb,  16  Johns.  89;  Osgood  v.  Manhattan  Co.  3  Cow.  621;  Clark 
v.  Vorce,  19  Wend.  232;  People  v.  Wiley,  3  Hill,  214.  The  later 
decisions  have  modified  this  doctrine,  in  harmony  with  the  gen- 
eral current  of  English  and  American  authority,  and  we  think 
they  rest  upon  sound  principles.  The  intendment  is,  that  an  error 
of  the  judge,  whether  in  the  admission  of  evidence  or  in  his 
instructions  to  the  jury,  was  prejudicial  to  the  party,  but  there  is 
no  more  difficulty  in  the  one  case  than  in  the  other,  in  determin- 
ing, upon  the  whole  record,  whether,  in  the  particular  case,  such 
intendment  is  repelled.-  Where  it  is  apparent  and  obvious  that 
the  supposed  error  did  not  and  could  not  affect  the  result,  nor 
work  either  injury  or  injustice  to  the  party  accused,  it  does  not 
call  for  a  reversal  of  the  conviction.  Shorter  v.  People,  2  X.  Y. 
193,  51  Am.  Dec.  280;  City  Baal:  of  Brooklyn  v.  Dearborn,  20 
KY.  246;  Forrest  v.  Forrest,  2:.  X.  Y.  510;  Smith  v.  Paton,  31 
K  Y.  G6;  State  v.  Ford,  3  Strobh.  L.  517.  note;  Rex  v.  Ball,  Russ. 
&  R.  132;  Bex  v.  Tinkler,  1  East,  P.  C.  384;  Horford  v.  Wilson, 

1  Taunt.  12;  Doe  v.  Tyler,  <i  Bing.  561;  Rutzen  V.  Farr,  4  Ad. 
&  El.  53;  Wright  v.  Doe,  7  Ad.  &  El.  313;  Nathan  v.  Buckland, 

2  Moore,  153;  Stiles  v.  Tilford,  In  Wend.  339;  Pagt  v.  Ells- 
worth, 44  Barb.  640;  People  v.  McCann,  16  K  Y.  61,  69  Am. 
Dec.  642;  Marcly  v.  Shultz,  29  K  Y.  356;  People  v.  Bransby, 
32  K  Y.  525. 

§  ISO.  Statements  of  Prosecuting  Attorney  of  Matters  not 
in  Evidence. — In  civil  cases  an  argument  to  the  jury  not  based 
on  evidence,  made  against  objection,  will  be  ground  fur  a  new 
trial.  Rolfe  v.  Rumford,  <;•'>  Me.  564;  Tinny  v.  Midvam  y,  S  ( >r. 
522;  Tucker  v.  Henniker,  41  N.  H.  318.  In  criminal  cases  the 
rule  is  more  stringent.  Ferguson  v.  State,  49  End.  <">■'!;  /'>>>/>/>?  v. 
Quick,  5s  Mich.  M24;  People  v.  Dane,  59  Mich.  552;  State  v. 
King,  44  Mo.  238.  It  is  the  duty  of  the  court  to  stop  the  district 
attorney  on  its  own  motion  when  he  states  facts  not  before  the 
jury,  or  uses  vituperation  and  abuse  predicated  upon  alleged  facts 
not  in  evidence,  and  calculated  to  create  prejudice  to  the  pris- 
oner. State  v.  Gutekunst,  2  1  Kan.  252;  Jenkins  v.  North  Caro- 
l/ma Ore  Dressing  Co.  65  JS\  C.  563;  State  \.  William*,  65  X.  C. 


216  LAW    OF    EVIDENCE    IN    CRIMINAL    CASES. 

505;  State  v.  Smith,  65  K  C.  369.  A  new  trial  was  ordered 
where  the  court  sustained  an  objection  to  the  language,  and 
admonished  the  attorney  that  it  was  improper.  Long  v.  State,  56 
Ind.  186;  State  v.  Graham,  62  Iowa,  108.  Where  the  court  in  a 
capital  case  interfered,  rebuked  the  attorney,  and  instructed  the 
jury  to  pay  no  attention  to  the  statements,  but  it  was  impossible 
to  say  that  no  injury  resulted  to  the  defendants  therefrom,  a  new 
trial  was  granted.     People  v.  Bowers,  79  Cal.  415. 

A  very  remarkable  case  illustrative  of  these  remarks  is  reported 
in  State  v.  Olds,  19  Or.  397.  The  case  was  one  of  homicide,  and 
was  invested  in  many  theatrical  incidents  owing  to  the  promi- 
nence of  the  parties,  and  the  additional  fact  that  the  bunco  fra- 
ternity of  two  states  had  combined  to  effect  the  release  of  the 
accused. 

It  was  vehemently  contended  by  the  district  attorney  in  his 
address  to  the  jury,  that  the  gamblers  in  Portland  were  at  the 
bottom  of  the  affair,  that  they  had  compassed  the  death  of  Weber, 
had  employed  Olds  to  carry  out  their  design,  and  raised  money  to 
clear  him  and  defeat  the  ends  of  justice.  And  he  strongly  inti- 
mated that  the  police  force  of  the  city  had  lent  its  aid  and  influ- 
ence .to  further  the  scheme. 

This  harangue  of  the  district  attorney  to  the  jury  was  highly 
sensational,  and  served,  no  doubt,  to  incite  their  passions  and 
prejudice  against  the  accused;  but,  unless  justified  by  the  evi- 
dence, was  quite  out  of  place.  The  trial  of  a  fellow  being  for 
murder,  where  the  penalty  is  death,  devolves  a  grave  responsibil- 
ity upon  the  attorney  for  the  state  as  well  as  upon  the  court  and 
jury,  and  a  conviction  should  never  be  urged  unless  justified  by 
the  proof,  fairly  weighed  and  considered.  It  is  to  ascertain  the 
truth  and  apply  the  law,  and  a  resort  to  imagination  or  fancy  in 
order  to  incite  the  passions  and  prejudices  of  the  triers,  is  a  devi- 
ation from  the  true  and  proper  course.  To  convict  and  put  to 
death  a  human  being  through  the  influence  of  prejudice  and  ca- 
price is  morally  murder,  and  more  pernicious  in  its  consequences 
by  far,  than  the  escape  of  a  guilty  person;  and  the  forms  of  law 
should  never  be  prostituted  to  such  a  purpose. 

It  has  been  held  repeatedly  that  the  court  has  no  author- 
ity to  review  the  decision  upon  a  motion  for  a  new  trial;  and  has 
been  intimated  very  strongly  a  number  of  times  that  the  question 
as  to  the  sufficiency  of  evidence  to  support  the  judgment  or  con- 


EVIDENCE    ON    APPLICATION    FOR   A    NEW    TRIAL.  247 

viction,  must  have  been  first  passed  upon  in  the  trial  court. 
Where  the  evidence  in.  a  capital  case  is  shown  to  be  clearly  in- 
sufficient to  warrant  a  conviction,  it  would  be  the  duty  of  this 
court,  under  its  supervisory  power  over  the  circuit  courts,  to  re- 
verse the  conviction  and  order  a  new  trial.  "It  is,"  says  Black- 
stone,  "the  noble  declaration  of  the  law  that  the  judge  shall  be 
counsel  for  the  prisoner;  that  is,  shall  see  that  the  proceedings 
against  him  are  legal  and  strictly  regular."  Bl.  Com.  (Cooley's 
>ed.)  354;  State  v.  Olds,  19  Or.  397. 

Our  extended  comment  on  the  foregoing  case  is  fully  war- 
ranted in  view  of  the  frequency  with  which  the  records  in 
criminal  cases  under  the  review  of  the  appellate  court  are  en- 
cumbered with  allegations  touching  the  error  of  the  trial  court 
in  tolerating  the  respective  counsel  in  commenting  upon  the  case 
as  to  matters  not  warranted  by  the  evidence.  In  further  exposi- 
tion of  this  point  I  cite  a  case  from  California  where  the  error 
complained  of  infected  the  record  through  the  joint  effort  of  the 
prosecuting  attorney  and  the  trial  court.  On  the  reversal  the 
court  says :  "Unfortunately,  the  judge  allowed  himself  rather 
frequently  to  question  the  witnesses,  always  in  the  interest  of  the 
prosecution,  and  often  by  putting  questions  which  were  leading 
and  suggestive.  We  think  the  jury  would  be  sure  to  get  the  im- 
pression that  the  judge  thought  the  defendant  guilty.  Still  more 
objectionable  was  the  conduct  of  the  prosecuting  attorney.  It  is 
true,  the  court  properly  interfered,  rebuking  the  attorney,  and 
instructing  the  jury  to  pay  no  attention  to  the  statements.  But 
the  statements  were  all  calculated  to  influence  the  jury  in  a  case 
of  this  character,  and  it  is  impossible  for  us  to  say  that  no  injury 
resulted  to  the  defendant  therefrom.  We  think,  upon  a  careful 
examination  of  the  record,  that  the  interests  of  justice  require  a 
new  trial  before  a  judgment  of  this  gravity  should  be  carried  into 
execution."     People  v.  Bowers,  79  Cal.  415. 

The  Illinois  supreme  court  has  placed  the  brand  of  condemna- 
tion upon  a  very  common  method  much  in  vogue  among  our 
prosecuting  attorneys.  I  refer  to  the  almost  universal  habit  of 
commenting  upon  the  failure  of  the  accused  to  take  the  witness 
stand.     Upon  this  subject  the  court  says  : 

"It  is  to  be  regretted  that  counsel  who  assisted  the  prosecuting 
attorney  referred,  in  his  argument  to  the  jury,  to  the  fact  that 
plaintiff  in  error  was  not  placed  on  the  stand  as  a  witness,  as  one 


248  LAW    OF    EVIDENCE    IN    CRIMINAL    CASES. 

of  the  reasons  why  he  should  be  convicted.  It  is  true,  that  when 
stopped  by  the  court,  he  said  it  was  inadvertently  done,  and  the 
jury  were  directed  by  the  court  to  disregard  it,  who  can  know 
what  effect  it  may  have  had  on  the  jury  in  forming  their  verdict? 
Such  comments  are  prohibited  by  the  statute,  and  it  is  strange 
that  any  attorney  should  so  far  forget  the  rights  of  the  accused, 
and  his  professional  duty,  for  a  moment,  even  in  the  heat  of  dis- 
cussion; but  he  said  it  was  inadvertent,  and  we  are  loth  to  believe 
that  any  attorney  would  intentionally  act  so  unfairly  and  unpro- 
fessionally.  We  cannot  conceive  that  any  member  of  the  bar 
could  deliberately  seek  by  such  means  to  wrongfully  procure  a 
conviction  and  the  execution  of  a  fellow  being,  when  his  highest 
professional  duty  to  his  client  only  requires  him  to  see  that  there 
is  a  fair  trial  according  to  the  law  and  the  evidence.  Where  suck 
things  are  done,  whether  intentionally  or  inadvertently,  it  may 
make  an  impression  on  the  minds  of  the  jury  that  nothing  can 
remove.  And  who  can  say  that  this  inadvertence  may  not  have 
produced  the  verdict  of  guilty  ?  "  Angelo  v.  People,  96  111.  209, 
36  Am.  Eep.  132. 

Improper  language  of  prosecuting  attorneys  has  frequently  been 
made  the  basis  of  severe  animadversion  by  the  Missouri  courts. 
State  v.  Mahly,  68  Mo.  316;  State  v.  Lee,  66  Mo.  165;  State  v. 
R<  d,  71  Mo.  200;  State  v.  Martm,  71  Mo.  517.  See  also  Cross 
v.  State,  68  Ala,  176;  Brown  v.  Swineford,  11  Wis.  282,  28- Am.. 
Kep.  582;  State  v.  Jackson,  95  Mo.  623. 

§  181.  Failure  to  Object  to  the  Admission  of  Improper 
Evidence  no  Ground  For. — Where  evidence  that  is  objection- 
able is  permitted  to  go  to  the  jury  without  objection,  and  it  is 
such  as  will  prove  a  fact,  a  verdict  founded  on  it  will  be  sus- 
tained. This  is  in  harmony  with  the  general  rule  substantially 
thus  stated  by  some  of  the  authorities  :  "A  party  objecting  to  a 
variance  between  the  pleadings  and  the  proof  must  make  his  ob- 
jection at  the  proper  time  during  the  trial,  and,  if  he  does  not,  he 
cannot  afterward  avail  himself  of  the  objection."  Belknap  v. 
Sealey,  11  K  Y.  113,  67  Am.  Dec.  120;  '  Manice  v.  Brady,  15 
Abb.  Pr.  173;  Shall  v.  Lathrop,  3  Hill,  237;  Pike  v.  Evans,  15 
Johns.  213;  Doyle  v.  Mulren,  7  Abb.  Pr.  K  S.  258.  In  Roberts 
v.  Graham,  73  U.  S.  6  Wall.  578,  18  L.  ed.  791,  the  Supreme 
Court  of  the  United  States  said  :  "The  objection  of  a  variance 
not  taken  at  the  trial,  cannot  avail  the  defendant  as  an 'error  in  the-. 


EVIDENCE    ON    APPLICATION    FOR    A    NEW    TRIAL.  249 

higher  court,  if  it  could  have  been  obviated  in  the  court  below;, 
nor  can  it  avail  him  on  a  motion  for  a  new  trial."  This  general 
doctrine  was  applied  in  a  criminal  case  in  Gross  v.  People,  47  111. 
152,  95  Am.  Dec.  474.  It  has  often  been  held  that  a  verdict  will 
be  sustained  on  evidence  which  would  have  been  excluded  had 
proper  objection  been  made.  Stockwell  v.  State,  1<  >1  Ind.  1;  Riehl 
v.  Evansville  Foundry  Asso.  104  Ind.  70;  Yeagerx.  Wright,  112 
Ind.  230;  McFadden  v.  Frits,  110  Ind.  5;  Indiana,  B.  &  W.R. 
Co.  v.  Finnell,  116  Ind.  414. 

Without  intimating  that  the  decisions  last  cited  are  not  declar- 
atory of  the  law,  is  it  not  obvious  that  at  least  in  the  trial  of  a 
capital  case,  a  conviction  based  upon  illegal  evidence  should  be 
set  aside? 

"If  the  evidence,  although  not  strictly  admissible,  is  not  of  a 
character  to  damage  the  defendant,  or,  as  it  has  been  otherwise 
expressed,  if  the  court  can  clearly  see  that  the  error  has  not  influ- 
enced the  result,  it  is  no  ground  for  a  new  trial."  Draper  v. 
State,  4  Baxt.  254;  Wilson  v.  Smith,  5  Yerg.  3S1;  Clark  v. 
Rhodes,  2  Heisk.  206;  Maddin  v.  Head,  1  Lea,  664;  McAdams 
v.  State,  S  Lea,  463. 

"And  ordinarily,  when  a  prisoner's  guilt  is  made  out  clearly  by 
positive  testimony,  it  should  be  no  ground  for  a  new  trial  that 
evidence  was  introduced  which  was  not  strictly  admissible,  if  the 
court,  can  see  that  the  defendant  was  not  prejudiced  thereby." 
McAdams  v.  State,  supra;  Turner  v.  Steite,  89  Tenn.  547. 

§  1S2.  Doctrine  of  Invited  Error  Considered. — If  the  party 
opens  the  door  to  the  admission  of  incompetent  evidence  he  is  in 
no  plight  to  complain  that  his  adversary  followed  through  the 
door  thus  opened.  Perkins  v.  Hayward,  124  Ind.  44.~>.  See 
similar  rulings  of  the  same  court  in  the  cases  of  Lowe  v.  Ryan,  9  I 
Ind.  450;  Meranda  v.  Spurlin,  100  Ind.  380;  Hinton  v.  Whit- 
taker,  101  Ind.  344;  Dinwiddie  v.  State,  103  Ind.  101;  Hobos  v. 
Tippecanoe  <_'<>"ntij  Comrs.  116  Ind.  376;  Nitche  v.  Earle,  117 
Ind.  27";  Mosier  v.  Stoll,  119  Ind.  244. 

Judge  Elliott  in  Dinwiddit  v.  State,  supra,  >:<y>  of  the  ques- 
tion involved  in  that  case:  "As  the  question  comes  to  us  we  can 
not  say  that  the  appellants  did  not.  on  cross-examination,  intro- 
duce evidence  of  the  same  character  as  that  which  they  now  seek 
to  make  available  for  a  reversal  of  this  judgment.  Nor  can  we 
presume  that  there  was  nothing  done  making  the  evidence  com 


260  LAW    OF    EVIDENCE    IN    CRIMINAL    CASES. 

petent  without  a  departure  from  settled  and  familiar  principles. 
It  is,  and  long  has  been,  a  settled  rule  that  all  reasonable  intend- 
ments will  be  indulged  in  favor  of  the  ruling  of  the  trial  court. 
So,  too,  it  is  well  settled  that  a  party  who  seeks  to  overthrow  the 
judgment  of  a  court  must  affirmatively  show  an  erroneous  ruling 
and  that  it  was  prejudicial  to  him.  It  is  evident  that,  under  these 
settled  rules,  the  appellants  cannot  successfully  demand  a  rever- 
.sal  of  the  judgment  upon  the  ground  that  there  was  error  in 
admitting  the  testimony  to  which  we  have  referred,  for  it  does 
not  affirmatively  appear  that  there  was  error  of  which  they  can 
take  advantage,  nor  is  the  presumption  which  we  are  bound  to 
yield  to  the  rulings  of  the  trial  court  overthrown.  We  do  not 
decide  whether  the  evidence  was  or  was  not  per  se  incompetent; 
we  decide  that  the  record  does  not  show  that  the  appellants  are 
in  a  situation  to  successfully  make  any  question  upon  its  intrinsic 
character." 

It  is  an  error  of  law  to  find  a  material  fact  when  there  is  a  total 
absence  of  evidence  to  sustain  it,  and  that  error  of  law  is  review- 
able in  the  appellate  court  upon  due  and  proper  exceptions.  Mur- 
ray v.  Harway,  56  N.  Y.  337;  Daffy  v.  Masterson,  44  JS".  Y.  557; 
Mason  v.  Lord,  40  K  Y.  477;  Pollock  v.  Pollock,  71  N.  Y.  137. 

§  1S3.  Technical  Errors  Disregarded  in  Motion  lor. — In 
Hitzman  v.  People,  110  111.  303,  the  court  says: 

"If  it  is  not  already  understood,  it  is  high  time  it  should  be,  that 
where  a  case  is  clearly  made  out  against  the  accused,  and  the  jury 
have  so  found,  this  court  will  not  reverse  for  a  mere  technical 
error,  which  it  can  see  could  not  have  affected  the  result." 

Taylor,  in  the  recent  edition  of  his  work  on  the  law  of  evi- 
dence, in  speaking  of  the  scope  and  meaning  of  substantial  jus- 
tice, says  that — 

"Even  judges  are  beginning  to  discover  that  substantial  justice 
is  of  more  real  importance  than  mere  technical  precision.  Wise 
men  should  ever  bear  in  mind  that  the  objects  of  the  acts  which 
authorize  amendments  in  criminal  proceedings  is  to  render  pun- 
ishment more  certain  by  neutralizing  the  effect  of  trivial  vari- 
ances, which  have  constantly  protected  the  wrong-doer. 

"So  long  as  the  least  rational  doubt  exists  respecting  the  guilt 
of  a  prisoner,  it  is  only  fair  that  the  ample  shield  of  justice  should 
screen  him  from  injury;  that  jurors  should  weigh  with  jealousy 
the  evidence  against  him,  and  judges  should  see  more  clearly  that 


EVIDENCE    ON    APPLICATION    FOR   A   NEW    TRIAL.  251 

(the  act  with  which  he  is  charged  is  an  offense  against  the  law. 
But  when  courts  of  justice  go  further  than  this  and  permit  the 
law  to  be  defeated  by  technical  errors,  which  cannot  by  possibility 
mislead  a  defendant,  and  which  have  nothing  to  do  with  the  sub- 
stantial merits  of  the  case,  they  take  the  most  effectual  means  of 
rendering  the  administration  of  the  criminal  law  a  fitting  subject 
for  contempt  and  ridicule.  In  civil  causes,  the  rules  authorizing 
•  amendments  receive  a  liberal  construction,  and  properly  so. 
Why,  then,  should  an  absurdly  strict  construction  be  apj)lied  in 
criminal  courts?  The  statutes  themselves  warrant  no  such  dis- 
tinction, and  to  introduce  into  the  interpretation  of  them  the  old 
doctrine,  strictissimi  juris,  is  to  misunderstand  and  misapply 
the  meaning  of  that  doctrine  and  to  make  the  commandments  of 
the  legislature  of  more  effect  through  your  traditions."  The 
foregoing  reasoning  may  be  relied  upon  to  support  the  rule  now 
well  understood  that  no  new  trial  can  be  granted  for  newly  dis- 
covered evidence  which  merely  tends  to  discredit  a  witness.  Hunt 
v.  State,  81  Ga.  140. 

In  Cooley,  Const.  Lim.  (5th  ed.)  501,  505,  it  is  laid  down:  "It 
is  a  general  rule  that  irregularities  in  the  course  of  judicial  pro- 
ceedings do  not  render  them  void.  An  irregularity  may  be  defined 
.as  the  failure  to  observe  that  particular  course  of  proceeding 
which,  conformably  with  the  practice  of  the  court,  ought  to  have 
been  observed  in  the  case."     Kelly  v.  People,  115  111.  583. 

The  tendency  of  modern  legislation,  as  well  as  judicial  decision, 
is  to  do  away,  as  far  as  possible,  with  the  subtle  and  refined  dis- 
tinctions of  the  common  law,  when  they  interfere  with  substantial 
justice.  Hutchinson  v.  Com.  82  Pa.  172.  And  what  makes  this 
proposition  so  peculiarly  offensive  to  the  criminal  classes  is  the 
impossibility  of  refuting  it. 

§  181.  Misconduct  of  Jury  as  Ground  for. — A  defendant  in 
a  criminal  case  is  not  entitled  to  a  new  trial  merely  because  there 
is  evidence  showing  the  misconduct  of  a  juror,  unless  it  be  shown 
that  such  misconduct  was  prejudicial  to  the  rights  of  the  defend- 
ant, or  such  a  state  of  facts  is  shown  from  which  it  may  fairly  be 
presumed  that  the  defendant's  rights  were  prejudiced.  II<  lining 
v.  State,  10G  Ind.  38G,  55  Am.  Kep.  756;  Mergentheim  v.  State, 
L07  Ind.  5(17;  Riley  v.  State,  9 5  Ind.  446;  Cooper  v.  State,  L20 
Ind.  377;  Drew  v.  State,  124  Ind.  9. 

The  same  conclusion  was  reached  in  People  v.  .!/<  nhen,  36  Hun, 


252  LAW    OF    EVIDENCE    IN    CRIMINAL    CASES. 

91,  3  ~N.  Y.  Crim.  Rep.  233,  where  it  was  held  that  a  verdict  of  a* 
jury  in  a  criminal  case  will  not  be  set  aside  for  irregularity  or 
improper  conduct  upon  the  part  of  jurors,  unless  it  be  shown  that 
the  defendant  was  prejudiced  thereby. 

Where  subsequent  to  the  verdict  the  alienage  of  one  of  the 
jurors  is  shown,  while  that  fact  would  have  been  a  just  ground  for 
challenge,  it  is  no  reason  for  avoiding  the  verdict  and  granting  a 
new  trial;  nor  where  a  juror  has  been  shown  to  have  expressed  a 
disqualifying  opinion  as  to  the  subject-matter  of  the  trial;  or  where 
he  was  not  a  citizen  of  the  county  or  state,  or  is  shown  to  have 
been  related  to  the  accused  within  the  prohibited  degrees.  Brown 
v.  La  Crosse,  C.  G.  L.  &  C.  Co.  21  Wis.  51;  State  v.  Shelledy,  8 
Iowa,  477;  Hollingsworth  v.  Duane,  4U.S.4  Dall.  353,  1  L.  ed. 
864;  State  v.  Quarrel,  2  Bay,  150,  1  Am.  Dec.  637;  State  v.  How- 
ard, 17  ~N.  H.  171;  Simjyson  v.  Pitman,  13  Ohio,  365;  Presbury 
v.  Com.  9  Dana,  203;  Keener  v.  State,  18  Ga.  194,  63  Am.  Dec. 
269;  Jones  v.  People,  2  Colo.  351;  Chase  v.  People,  40  111.  352;. 
Mt.  Desert  v.  Cranberry  Isles,  46  Me.  411;  Hull  v.  Albro,  2 
Disney,  147;  Pomaine  v.  State,  7  Ind.  67;  Thompson  v.  Page, 
16  Ca'l.  78;  Poseborough  v.  State,  43  Tex.  570;  Costly  v.  State,  19 
Ga.  614;  Kennedy  v.  Com.  14  Bush,  340;  McLellan  v.  Crofton, 
6  Me.  307;  Orme  v.  Pratt,  4  Cranch,  C.  C.  124;  Taylor  v.  Gree- 
ly,  3  Me.  204;  Baker  v.  State,  4  Tex.  App.  227;  Smith  v.  Parle, 
118  Mass.  531. 

Where  the  attorney  for  the  accused  fails  to  inquire  as  to  the 
alienage  and  competency  of  a  juror  at  the  time  the  trial  jurors 
are  being  selected,  such  failure  will  be  construed  as  a  waiver  of 
the  defendant's  right  to  challenge.  Jeffries  v.  Randall,  14  Mass. 
205;  State  v.  Punch,  17  Iowa,  365;  JEstep  v.  Wattrous,  45  Ind. 
140;  State  v.  Shelledy,  supra',  Alexander  v.  Dunn,  5  Ind.  122; 
Keener  v.  State,  and  Chase  v.  People,  supra;  State  v.  Patrick,  3 
Jones,  L.  443;  Collier  v.  State,  20  Ark.  36;  Croy  v.  State,  32  Ind. 
384;  Wilder  v.  State,  25  Ohio  St.  555;  Tweedy  v.Briggs,  31  Tex. 
74;  Beak  v.  State,  20  Ohio  St,  228;  State  v.  Parks,  21  La.  Ann. 
251. 

It  is  erroneous  to  allow  the  jury,  after  retiring  to  consider  of 
their  verdict,  to  have  access  to  law  books  of  any  description. 
They  must  get  their  instructions  as  to  the  law  of  the  case  from 
the  court,  and  not  from  their  own  perusal  of  the  books.  John- 
son v.  State,  27  Fla.  245. 


EVIDENCE    ON    APPLICATION    FOR   A   NEW    TJRIAL.  253 

It  has  been  held  that  a  new  trial  should  be  granted  for  miscon- 
duct of  the  jury  in  consulting  law  books  on  the  crime  of  rape 
during  their  deliberations.  Proffatt,  Jury  Trials,  404;  Mt  rrill  v. 
Nary,  10  Allen,  416;  State  v.  Smith,  6  R.  I.  33;  Harrison  v. 
Hom.ce,  37  Mo.  185;  Xru-kirk  v.  State,  27  Ind.  1;  Burroics  v. 
JJnwin,  3  Car.  &  P.  310;  Ilartung  v.  People,  4  Park.  Crim. 
Pep.  311),  affirming  8  Abb.  Pr.  132,  17  How.  Pr.  85;  Manuel  v. 
People,  48  Barb.  54S;  Coffin  v.  Gephart,  L8  Iowa.  256;  Mitchell 
v.  Carter,  14  Hun,  44S;  Taylor  v.  lltxford,  13  Johns.  487;  Zo^ 
v.  Macon,  2  Strobh.  L.  178. 

In  a  very  recent  case  reported  from  the  state  of  Washington, 
it  was  conceded  that,  while  the  rule  that  the  separation  of  the 
jury  in  a  criminal  case  prior  to  the  receipt  of  its  verdict  by  the 
court  was  a  misconduct  which  would  entitle  the  defendant  to  a 
new  trial  was  a  good  one  when  made,  and  could  not  be  disre- 
garded at  that  time  without  greater  danger  of  seriously  prejudic- 
ing the  substantial  rights  of  the  defendant,  as  then  the  jury  could 
not  render  a  written  verdict  in  a  criminal  case,  but  must  render 
it  ore  tenus,  and  that,  under  such  a  provision  of  law,  if  a  jury 
Mere  permitted  to  separate  prior  to  the  rendering  of  the  verdict, 
they  might  be  subjected  to  influences  dangerous  to  society  and 
subversive  of  the  rights  of  the  defendant.  Anderson  v.  State,  2 
Wash.  183.  i 

Where  the  proof  of  drinking  is  clear  and  undisputed,  and  that 
it  was  done  while  the  jury  were  actually  deliberating  upon  their 
verdict,  in  a  capital  case,  a  verdict  of  conviction  should  not  be 
allowed  to  stand.  This  rale  is  recommended  by  considerations 
far  too  obvious  to  require  formal  justification.  See  P><>jilc 
v.  .Gray,  61  Cal.  164,  183,  44  Am.  Rep.  549;  Leighton  v. 
Sargent,  31  JSr.  H.  119,  34  Am.  Dec.  324:  Brant  v.  Fowler,  7 
;  -  562;  People  v.  Douglass,  4  Cow.  26;  Wilson  v.  Abrahams, 
1  Hill,  2*'7;  Jones  v.  State,  13  Tex.  168,  62  Am.  I  )ec  550;  State 
v.  A'''/'///.  1 7  Iowa,  39;  Ryan  v.  Harrow,  27  Iowa,  494,  1  Am. 
Pep.  302;  Davis  \.  State,  35  Ind.  496,  9  Am.  Rep.  760;  State  \. 
Bullard,  16  X.  H.  139;  Pelham  v.  Page,  6  Ark.  535;  cV/vyy  v. 
McDaniel,  4  Harr.  (Del.)  367. 

In  the  case  of  People  v.  Douglass,  supra,  the  court  said:  "It 
will  not  do  to  weigh  and  examine  the  quantity  which  may  have 
been  taken  by  the  juror,  nor  the  effect  produced."  And  in 
Li'njldori  v.  Sargent:     "For  the  cause  that  brandy  was  furnished 


254:  LAW    OF    EVIDENCE    IN    CRIMINAL   CASES. 

to  the  jury,  and  drunk  by  several  of  them,  while  deliberating- 
upon  the  cause,  after  retiring  to  form  their  verdict,  we  think  the 
verdict  must  be  set  aside.  The  quantity  drank  was  probably 
small,  but  we  cannot  consent  that  that  fact  should  make  a  differ- 
ence." 

So  in  State  v.  Baldy,  17  Iowa,  39 :  "The  parties  have  a  clear 
right  to  the  cool,  dispassionate  and  unbiased  judgment  of  each 
juror,  applied  to  the  determination  of  the  issues  in  the  cause;  and 
the  use  in  any  degree  of  that  which  stimulates  the  passions,  and 
has  a  tendency  to  lessen  the  soundness  of  judgment,  is  itself  con- 
clusive evidence  that  the  party  who  has  the  right  to  the  exercise 
of  that  dispassionate  judgment  has  been  prejudiced  in  not  having 
it,  as  perfect  as  it  existed  in  the  juror  when  accepted,  applied  to 
the  determination  of  the  cause.  If  this  is  true  as  a  general  rule, 
and  as  applicable  to  civil  cases,  a  fortiori  is  the  rule  applicable  in 
criminal  cases,  and  especially  in  this  case,  in  which  the  offense 
charged  involves  obedience  to  passions  stimulated  more  than  oth- 
ers by  the  use  of  spirituous  liquors,  and,  of  course,  in  its  correct 
determination,  requiring  the  most  careful  guarding  against  undue 
influence  from  them."     People  v.  Lee  Chuck,  78  Cal.  317. 

After  a  careful  examination  of  the  subject,  the  general  doctrine 
is  announced  as  this :  "A  verdict  will  not  be  vacated,  even  in  a 
capital  case,  on  account  of  the  misconduct  or  irregularity  of  the 
jury,  unless  it  be  such  as  might  affect  their  impartiality  or  dis- 
qualify them  from  the  proper  exercise  of  their  functions."  Titus 
v.  State,  49  K  J.  L.  36. 

§  185.  Evidence  of  Irregularity  in  the  Composition  of  the 
Grand  Jury. — Chitty,  in  his  work  on  Criminal  Law,  vol.  1,  p. 
307,  says :  "It  is  perfectly  clear  that  all  persons  serving  upon 
the  grand  jury  must  be  good  and  lawful  men;  by  which  it  is  in- 
tended that  they  must  be  liege  subjects  of  the  King,  and  neither 
aliens  nor  persons  outlawed  even  in  a  civil  action;  attainted  of  any 
treason  or  felony;  or  convicted  of  any  species  of  crimen  falsi,  as 
conspiracy  or  perjury,  which  may  render  them  infamous.  And 
if  a  man  who  lies  under  any  of  these  disqualifications  be  returned 
he  may  be  challenged  by  the  prisoner  before  the  bill  is  presented 
or,  if  it  be  discovered  after  the  finding,  the  defendant  may  plead 
it  in  avoidance,  and  answer  over  to  the  felony;  for  which  purpose 
he  may  be  allowed  the  assistance  of  counsel  on  producing  in  court 
the  record  of  the  outlawry,  attainder,  or  conviction,  on  which  the 
incompetence  of  the  jurymen  rests." 


EVIDENCE    ON    APPLICATION    FOR   A   NEW   TRIAL.  255- 

This  is,  undoubtedly,  the  general  rule  as  to  the  manner  in 
which  objection  may  be  taken  to  the  personnel  of  the  grand  jury 
though  in  this  country  a  motion  to  quash  the  indictment  may  be 
made  instead  of  pleading  specially  in  abatement.  The  require- 
ment of  answering  over  to  the  felony  in  connection  with  the  plea 
in  abatement  is  for  the  benefit  of  the  accused,  in  order  that  he 
may  not  be  concluded  on  the  merits  if  he  should  fail  in  sustaining 
his  special  plea;  a  precaution  which  probably  would  not  be  neces- 
sary in  our  practice.  United  States  v.  Gale,  109  XJ.  S.  Go,  27  L. 
ed.  857. 

The  method  of  selecting,  drawing,  summoning  and  impaneling 
a  grand  jury  or  a  trial  jury,  is  prescribed  by  statutory  law. 
Wynehamer  v.  People,  13  X.  Y.  127;  Young  v.  State,  6  Ohio, 
436;  Cruger  v.  Hudson  River  R.  Co.  12  N.  Y.  199;  People  v. 
Buff,  Go  How.  Pr.  365;  McQuillen  v.  State,  8  Smedes  &  M.  587. 
And  any  evidence  tending  to  show  the  failure  in  the  observance, 
the  statutory  recital  is  competent.  The  personnel  of  the  grand 
jury  must  comply  with  the  law  in  order  to  constitute  a  legal  body; 
and  any  indictment  found  by  a  panel  drawn  in  contravention  of 
the  law  is  a  mere  nullity.  Clare  v.  State,  30  Md.  164;  State  v. 
Symonds,  36  Me.  128;  Brown  v.  Com.  73  Pa.  321,  13  Am.  Rep. 
710;  Chase  v.  State,  20  X.J.  L.  21S;  Whitehead  v.  Com.  19 
Gratt.  610;  Raids  v.  State,  8  Smedes  &  M.  599;  McQuillen  v- 
State,  8  Smedes  &  M.  599;  Stokes  v.  State,  21  Miss.  621;  Barney 
v.  State,  12  Smedes  &  M.  6S;  Miller  v.  State,  33  Miss.  356;  Doyle 
v.  State,  17  Ohio,  222;  State  v.  Williams,  5  Port.  (Ala.)  130; 
Finley  v.  State,  61  Ala.  201;  Scott  v.  State,  63  Ala.  59;  B<  rry  v. 
State,  63  Ala.  126;  Couch  v.  State,  63  Ala.  163;  State  v.  Conm  r,  5 
Blackf.  325;  Dutellx.  State,  4  G.  Greene,  125;  State  v.  Jennvngs, 
15  Rich.  L.  42;  State  v.  Pratt,  15  Rich.  L.  47;  State  v.  Bryce, 
11  S.  C.  342;  Wilburn  v.  State,  21  Ark.  198;  State  v.  Morgan,  20 
La.  Ann.  412;  State  v.  Jacobs,  6  Tex.  99;  Barton  v.  State,  12 
Neb.  260;  Green  v.  State,  59  Md.  123.  13  Am.  Rep.  512. 

In  State  v.  Wood,  53  X.  H.  484,  Sargeant,  Ch.  J.,  states  the 
weight  of  authority  now  to  be,  "that  a  grand  juror  may  be  com- 
pelled to  testify  when  necessary  to  promote  the  cause;  of  the  jus- 
tice, what  the  witnesses  before  the  grand  jury  testify  to,  either  to 
contradict  such  witnesses  or  otherwise." 

In  State  v.  Benner,  64  Me.  207,  the  court  says  :  "But  the  oath 
of  the  grand  juror   does  not  prohibit   his   testifying   what   was 


256  LAW    OF    EVIDENCE    IN    CRIMINAL    CASES. 

sworn  before  the  grand  jury,  when  the  evidence  is  required  for 
the  purposes  of  public  justice  or  the  establishment  of  private 
rights.  .  .  .  So  in  all  cases  when  necessary  for  the  protection 
of  the  rights  of  parties,  whether  civil  or  criminal,  grand  jurors 
may  bo  witnesses.  Such  seems  the  result  of  the  most  carefully 
•considered  decisions  in  this  country." 

In  Bur  dick  v.  Hunt,  43  Ind.  381,  it  is  said  that  "the  oath  of 
grand  jurors  does  not  prevent  the  public,  or  an  individual,  from 
proving  by  one  of  the  jurors,  in  a  court  of  justice,  what  passed 
before  the  grand  jury." 

In  Jones  v.  Turjyin,  6  Heisk.  181,  it  is  said  that  "when  these 
-ends  have  been  accomplished  the  entire  purpose  of  secrecy  is 
effected,  and  if  at  a  subsequent  period  it  shall  become  necessary 
to  the  attainment  of  justice  and  the  vindication  of  truth  and  right 
in  a  judicial  tribunal  that  the  conduct  and  testimony  of  prosecu- 
tors and  witnesses  shall  be  inquired  into,  there  is  no  reason  why 
it  should  not  be  done." 

In  Gordon  v.  Com.  92  Pa,  216,  37  Am.  Rep.  672,  it  is  said 
that  "on  no  sound  principle  can  it  be  said  that  a  witness  who  has 
testified  before  a  grand  jury  shall  be  permitted  to  claim  that  his 
evidence  was  a  privileged  communication,  so  that  it  shall  not  be 
shown  under  the  direction  of  the  court,  whenever  it  becomes  ma- 
terial in  the  administration  of  justice.  It  is  material  when  the 
evidence  is  necessary  to  protect  public  or  private  rights." 

"When  for  the  purposes  of  public  justice,  or  for  the  protection 
of  private  rights,  it  becomes  necessary,  in  a  court  of  justice,  to 
disclose  the  proceedings  of  the  grand  jury,  the  better  authorities 
now  hold  that  this  may  be  done.  It  is  obvious  that  there  are 
certain  transactions  of  the  grand  jury  room  which  it  can  never  be 
for  the  interests  of  justice  to  disclose;  for  example,  what  particu- 
lar jurors  concurred  in  or  opposed  the  finding  of  the  indictment, 
what  opinions  were  expressed  by  various  members  of  the  body. 
In  respect  to  such  matters  the  injunction  of  secrecy  may  well  be 
perpetual."  Thomp.  &  M.  Juries,  §  703;  Ex  parte  Sontag,  61 
Cal.  525. 

The  question  before  the  grand  jury  being  whether  a  bill  is  to 
be  found,  the  general  rule  is  that  they  should  hear  no  other  evi- 
dence but  that  adduced  by  the  prosecution.  But  it  has  been 
doubted  whether,  as  they  are  sworn  to  "inquire,''  they  may  not 
if  the  case  of  the  prosecution  appear  imperfect,  call  for  such  wit 


EVIDENCE    ON    APPLICATION    FOR   A   NEW   TRIAL.  257 

nesses  as  the  evidence  they  have  already  heard  indicates  as  neces- 
sary to  make  out  the  charge.  Under  such  a  suggestion,  it  would 
become  the  duty  of  the  prosecuting  officer  to  cause  the  requisite 
witnesses  to  be  summoned;  and  it  is  his  duty  in  any  view  to  bring 
before  the  grand  jury  all  competent  witnesses  to  the  res  gestce. 
But  it  is  not  the  usage  to  introduce,  in  matters  of  confession  and 
avoidance,  witnesses  for  the  defense,  unless  their  testimony 
becomes  incidentally  necessary  to  the  prosecution.  Whart.  Crim. 
PI.  &  Pr.  (8th  ed.)  §  360,  citing  2  Hawk.  P.  C.  chap.  25,  §  145;  2 
Hale,  P.  C.  257;  4  Bl.  Com.  303;  United  States  v.  Palmer,  2 
•Cranch,  C.  C.  11;  United  States  v.  Lawrence,  4  Cranch,  C.  C.  518; 
1  Chitty,  Crim.  Law,  318;  Dickinson,  Quarter  Sessions,  174,  175; 
■Cox  v.  Coleridge,  1  Barn.  &  C.  37,  51;  Reg.  v.  Borron.r  3  Barn. 
&  A.  432;  Re  Crowe,  1  Chitty,  214;  Duty  of  Grand  Jury, 
Addison's  Charges  (Pa.)  42;  United  States  v.  White,  2  Wash.  C. 
C.  29;  United  States  v.  Blodgett,  35  Ga.  336;  Resjnihlica  v.  Shaf- 
fer, 1  U.  S.  1  Dall.  236,  1  L.  ed.  115. 

§  186.  Evidence  of  the  Record  on  Appeal. 
a.  Rules  in  Admitting  and  Excluding  Evidence. — Where 
a  point  upon  which  evidence  is  excluded  is  conceded  by  an 
admission  made  during  the  trial,  or  by  an  admission  in  the  plead- 
ings as  well  as  where  it  is  established  by  uncontradicted  evi- 
dence, error  in  excluding  additional  evidence  is  generally  said  to 
be  harmless,  although  it  would,  perhaps,  be  more  accurate  to  say 
there  is  no  error.  Permitting  the  introduction  of  evidence  that 
is  clearly  immaterial  is,  as  a  general  rule,  harmless  even  if  errone- 
ous. But  this  rule  is  one  to  be  applied  with  some  care,  since  it 
is  not  always  possible  for  the  appellate  tribunal  to  ascertain  what 
effect  apparently  immaterial  evidence  may  have  had  upon  a  jury. 
It  is,  at  all  events,  not  safe  to  apply  the  rule  strictly  or  too  gen- 
erally. AVhere  it  affirmatively  appears  or  where  it  may  be  fairly 
inferred  that  in  the  particular  case  the  erroneous  admission  of  the 
evidence  could  not  have  influenced  the  verdict,  the  error  is  always 
to  be  regarded  as  harmless.  As  evidence  seemingly  immaterial 
may  sometimes  arouse  prejudice,  create  undue  passion,  to  carry 
the  jury  to  collateral  issues,  it  must  be  true  that  there  are  cases 
forming  exceptions  to  the  settled  general  rule.  Where  objection 
is  made,  but  no  evidence  is  introduced,  the  error  in  overruling 
the  objection  is  rendered  harmless  for  the  reason  that  the  ruling 
17 


258     l  LAW    OF    EVIDENCE    IN    CRIMINAL    CASES. 

wasuninfluential.  It  is  held  in  one  of  our  cases  that  "illegal' 
proof  of  what  need  not  be  proved  at  all  will  not  vitiate  a  verdict." 
But  this  doctrine  requires  some  little  qualification,  for  it  is  very 
clear  that  serious  harm  may  be  done  by  permitting  a  party  to  give 
incompetent  evidence,  although  he  may  not  be  under  any  obliga- 
tion to  give  any  evidence  upon  the  point.  Elliott's  Appellate 
Procedure,  §  641,  citing  Citizens  State  Bank  v.  Adams,  91  Ind. 
280;  Ilolliday  v.  Thomas,  90  Ind.  80S;  Cooper  v.  Blood,  2  Wis.. 
62;  State  v.  Avery,  17  Wis.  673;  Heath  v.  Keyes,  35  Wis.  668; 
Axtel  v.  Chase,  83  Ind.  546;  Davis  v.  Liberty  dc  C.  Gravel  Road 
Co.  84  Ind.  36;  McKesson  v.  Sherman,  51  Wis.  303;  Davis  v.. 
Fulton,  32  Wis.  657;  West  Coast  Lumber  Co.  v.  Netvkirk,  80 
Cal.  275;  Dickinson  v.  Coulter,  45  Ind.  445;  Indianapolis,  P.  & 
C.  R.  Co.  v.  Anthony,  43  Ind.  1S3;  Persons  v.  McKibben,  5  Ind. 
261,  61  Am.  Dec.  85;  Re  Crawford,  113  K  Y.  560;  Kinsley  v. 
Morse,  40  Ivan.  577;  Oshkosh  Gaslight  Co.  v.  German  ia  F.  Ins. 
Co.  71  Wis.  454,  5  Am.  St.  Eep.  238;  Latterett  v.  Cool;  1  Iowa, 
1,  63  Am.  Dec.  428;  Barton  v.  Kane,  17  Wis.  38;  Wmkley  v. 
Foye,  33  K  II.  171;  Edgerly  v.  Emerson,  23  N.  II.  555;  &/^> 
herd  v.  Lanfear,  5  La.  336:  Brooks  v.  Duteher,  22  Neb.  644; 
Hanson  v.  Elton,  38  Minn.  403;  Robinson  v.  Shanks,  118  Ind. 
125;  JTfcm  v.  Hqfheimer,  132  U.  S.  367,  33  L.  ed.  373;  McDer- 
mitt  v.  Hubanks,  25  Ind.  232;  Wayne  County  Tump.  Co.  v. 
Berry,  5  Ind.  286;  Wangle  v.  State,  101  Ind.  284;  Gebhart  v. 
Burkett,  57  Ind.  37S;  Lovinger  v.  Madison  First  Nat.  Bank,  81 
Ind.  354;  i?^  v.  Morehead,  110  Ind.  451;  Graves  v.  Campbell. 
74  Tex.  576;  r«y^  v.  Baltimore  &  a  i?.  &?.  33  W.  Ya.  39; 
Bartlett  v.  Beardmore,  74  Wis.  485;  Fordyce  v.  Mc Cants,  55 
Ark.  509;  ifofo/'  v.  Dessauer,  49  Ind.  28;  Findley  v.  tftafe,  5 
Blackf.  576;  Beagles  v.Sefton,  7  Ind.  496;  Linardv.  Grassland. 
,10  Tex.  462;  Donley  v.  <7<zmj?,  22  Ala.  659;  &S  v.  Boynton,  32 
Ala.  353,  70  Am.  Dec.  540. 

An  exception  to  the  overruling  of  an  objection  to  evidence, 
where  the  objection  was  made  after  the  evidence  has  been 
received,  is  not  available.     Pontius  v.  People,  82  1ST.  Y.  339. 

b.  Consideration  of  the  Exceptions. — Exceptions  in  criminal 
causes  occupy  the  same  position  that  they  do  in  civil  actions,  and 
where  the  record  fails  to  furnish  evidence  of  the  nature  and  scope 
of  the  exceptions  taken,  it  is  too  late  to  raise  such  exception  in 
the  appellate  court  on  a  motion  for  a  new  trial.     So,  objection  to- 


EVIDENCE    ON    APPLICATION    FOR   A    NEW    TRIAL.  259 

the  sufficiency  of  an  indictment  cannot  be  taken  by  objecting 
ore  tenus  to  the  introduction  of  evidence.  State  v.  Meyers,  99 
Mo.  107. 

Other  decisions  in  this  court  abundantly  sustain  this  position. 
Kev.  Stat.  1879,  §  1921;  State  v.  Marshall,  36  Mo.  400;  State  v. 
Bay,  53  Mo.  345;  State  v.  Williams,  77  Mo.  310;  State  v.  Bur- 
nett, 81  Mo.  119;  State  v.  McDonald,  85  Mo.  539;  State  v.  Pints, 
64  Mo.  317. 

Even  in  cases  where  the  record  discloses  indisputable  evidence 
of  error  on  the  part  of  the  trial  court  a  reversal  of  the  judgment 
will  not  necessarily  follow,  as  it  is  well  settled,  that  a  court  is  not 
required  to  reverse,  even  in  a  capital  case  for  every  error  commit- 
ted on  the  trial,  even  where  such  error  is  made  the  subject  of  an 
exception.  Shorter  v.  People,  2  X.  Y.  193.  51  Am.  Dec.  2S6; 
People  v.  McCann,  16  \.  V.  58,  69  Am.  Dec.  642:  People  v. 
B ransby,  32  1ST.  Y.  525;  People  v.  Gonzah  s,  35  X.  Y.  59;  Fralich 
v.  People,  65  Barb.  4s. 

The  general  exception  to  evidence  that  it  is  incompetent,  irrel- 
evant and  immaterial,  even  when  incorporated  in  the  record  is  not 
sufficient  to  present  a  question  for  the  appellate  court.  This  rule 
obtains  in  civil  causes,  and  the  same  as  in  civil  actions.  Stringer 
v.  Frost,  2  L.  R.  A.  614,  116  Ind.  477;  Bundy  v.  Cunningham, 

107  Ind.  360;  Clark  Civil  Twp.  v.  BrooJcshire,  114  Ind.  437; 
Chicago  &  K  I.  R.  Co.  v.  Holland,  122  111.  461;  Metzger  v. 
Franklin  Bank.  119  Ind.  359;  Vickery  v.  McCormack,  117  Ind. 
594;  Byard  v.  Harkrider,  108  Ind.  376;  McCullough  v.  Davis, 

108  Ind.  292;  Louisville,  if.  A.  &  C.  R.  Co.  v.  Falvey,  104  Ind. 
409. 

"A  prisoner  on  trial  under  our  laws  has  no  right  to  stand  by 
and  suffer  irregular  proceedings  to  take  place,  ami  then  ask  to 
have  the  proceedings  reversed  on  error  on  account  of  such  irregu- 
larities. The  law,  by  furnishing  him  with  counsel  to  defend  him, 
has  placed  him  on  the  same  platform  with  all  other  defendants; 
and  if  he  neglects  in  proper  time  to  insist  on  hi.-  rights,  he  waives 
them."     McKinney  v.  People,  17  111.  556. 

To  the  same  effect  are  Bulliner  v.  People,  95  111.  394;  Perteet 
v.  People,  70  111.  171;  Graham  v.  People,  L15  111.  566. 

The  general  rule,  which  requires  a  party  objecting  to  evidence 
to  specify  the  ground  of  the  objection,  is  to  prevent  surprise  and 
enable  the  court  and  the  other  party,  in  dealing  with  the  objec- 


260  LAW    OF    EVIDENCE    IN    CRIMINAL    CASES. 

tion,  to  act  understandingly.  There  are  often  technical  objections 
to  questions,  which,  upon  being  suggested,  will  at  once  be 
acquiesced  in  or  induce  a  change  in  the  form  of  the  question  or 
mode  of  proof  by  which  the  objection  is  obviated.  In  such  cases 
common  fairness  and  the  due  administration  of  justice  requires 
that  the  party  should,  by  specifying  the  ground  of  the  objection 
bring  the  attention  of  the  court  directly  to  the  point,  and  if  he 
omits  to  do  so  he  is  justly  deprived  of  the  benefit  of  his  objection. 
People  v.  Beach,  87  N.  Y.  508. 

Exceptions  to  the  admission  or  exclusion  of  evidence  in  order 
to  be  available  in  the  appellate  court,  must  be  specific;  and  should 
be  framed  in  such  a  way  as  to  call  the  attention  of  the  presiding 
judge  to  the  exact  ground  upon  which  the  objection  is  based. 
Fuller  v.  Smith,  74  Ga.  835;  Smythe  v.  Scott,  106  Ind.  245; 
Bumswick  v.  Moore,  and  Hall  v.  Huff,  74  Ga.  409;  Dozier  v. 
Jerman,  30  Mo.  216;  Letton  v.  Graves,^  Mo.  250;  Camden  v.Dore- 
m  us,  44  IT.  S.  3  How.  515, 11  L.  ed.  705;  Weston  &  P.  R.  Co.  v. 
Cox,S2  Mo.  456;  Peckv. Chouteau,  91  Mo.  138;  Shelton  v.  Durham, 
76  Mo.  434;  Watson  v.  McLaren,  19  Wend.  557;  Baier  v.  Berber- 
ich,  85  Mo.  30;  Martin  v.  Travers,  12  Cal.  243;  Baker  v.  Joseph, 
16  Cal.  173;  MaUett  v.  White,  12  K  Y.  442;  Kansas  Pac.  P. 
Co.  v.  Pointer,  9  Kan.  620;  Jackson  v.  Cadwell,  1  Cow.  622; 
Michel  v.  Ware,  3  Neb.  229;  Johnson  v.  Adleman,  35  111.  265; 
Carroll  v.  Benicia,  40  Cal.  390;  Stone  v.  Great  Western  Oil  Co. 
41  111.  85:  Moser  v.  Kreigh,  49  111.  84;  Hanford  v.  Obrecht,  49 
111.  146;  W(  ide  v.  Davidson,  15  Minn.  330;  Gilbert  v.  Thompson, 
14  Minn.  544;  Bickham  v.  Smith,  62  Pa.  45;  Batdorffv.  Farm- 
ers Nat.  Bank,  61  Pa.  179;  Moore  v.  Bank  of  the  Metropolis,  38 
U.  S.  13  Pet.  302,  10  L.  ed.  172;  Elliott  v.  Peirsol,  26  U.  S.  1 
Pet.  328,  7  L.  ed.  164;  Hinde  v.  Longworth,  24  U.  S.  11  Wheat. 
199,  6  L.  ed.  454;  Delphi  v.  Lowery,  74  Ind.  520;  Forbing  v. 
Weber,  99  Ind.  588;  Carter  v.  Bennett,  4  Fla.  284;  Elwood  v. 
Deifendorf,  5  Barb.  398;  Trvinson  v.  Van  Piper,  34  Ind.  148; 
Fi  riter  v.  State,  33  Ind.  283;  Sutherland  v.  Venard,  32  Ind.  483; 
Watts  v.  Green,  30  Ind.  9S;  Gibson  v.  £m?;i,  22  Ind.  422;  Fvey 
v.  Smith,  18  Ind.  461;  Boggs  v.  $£afe,  8  Ind.  463;  Prather  v. 
Bambo,  1  Blackf.  189;  Priddy  v.  D<?^,  4  Ind.  84;  TF^«  v. 
Yeager,  11  Ind.  84;  Louisville,  N.A.  &  C.  P.  Co.  v.  Grantham, 
104  Incl.  353;  iW?r  v.  fc'tfA,  74  Ga.  835;  Smythe  v.  Scott,  106 
Ind.  245;  Brunswick  v.  Moore  and  ZfoZ£  v.  i7?^',  74  Ga.  409; 


EVIDENCE    ON    APPLICATION    FOE   A    NEW    TRIAL.  261 

Northwestern  Mut.  L.  Ins.  Co.  v.  Hazelett,  105  Ind.  212;  Land- 
werlen  v.   Wheeler*  106  Ind.  523. 

A  particular  objection  is  necessary  to  raise  the  question  of  the 
admissibility  of  evidence  as  part  of  the  res  gestce.  Hughes  v. 
State,  27  Tex.  App.  127. 

The  Illinois  practice  is  in  perfect  harmony  with  the  rules  above 
stated,  and  it  is  well  settled  in  that  jurisdiction  that  all  motions 
and  decisions  made  before  or  rendered  by  the  trial  court,  must 
be  incorporated  in  the  record  through  the  medium  of  a  bill  of 
exceptions.  Holmes  v.  People,  10  111.  478;  Earll  v.  People.  73 
111.  329;  McClurkin  v.  Ewmg,  42  D1.-283;  Hay  v. Hayes,  06  111. 
342;  Graham  v.  People,  115  111.  566;  Snell  v.  Clinton  M.  E 
Church  Trustees,  58  111.  292;  Tarble  v.  People,  111  111.  120; 
Gaddg  v.  McCleave,  59  111.  1S3;  Boyle  v.  Levings,  28  111.  314; 
Thompson  v.  White,  64  111.  314. 

In  order  to  entitle  a  party  to  a  review  of  the  action  of  the  trial 
court,  it  is  necessary  that  exceptions  betaken  at  the  time  of  the 
adverse  ruling.  This  rule  applies  as  well  to  criminal,  a;  to  civil 
cases.  State  v.  Elvins,  101  Mo.  246;  State  v.  Brannum,  95  Mo. 
22;  State  v.  McDonald,  85  Mo.  542. 

See  generally  on  this  topic,  2  Rice,  Civil  Ev.  chap.  34. 

c.  Wheii  Exceptions  are  Deemed  Waived. — An  exception 
may  also  be  waived  by  the  party  taking  it;  he  is  not  bound  to 
stand  by  the  exception.  It  may  be  waived  expressly  or  by  infer- 
ence, and  the  implication  of  such  waiver  is  unavoidable  when  he 
offers  again  proof  of  a  fact  excluded  by  a  former  ruling:  for  by 
his  renewed  application  he  elects  to  submit  to  the  decision  of  the 
court.  If  that  is  in  his  favor,  the  former  exception  falls.  He 
cannot  retain  the  exception  and  so  allege  error  in  law.  after  get- 
ting such  evidence  as  he  offers,  and  try  before  the  jury  its  effect 
upon  the  question  of  fact.  He  must  be  deemed  to  have  made 
the  new  offer  under  circumstances  satisfactory  to  himself,  and  is 
thus  brought  directly  within  the  rule  that  exclusion  of  evidence 
at  any  stage  of  the  trial  is  no  ground  of  exception  if  it  is  subse- 
quently admitted.  Pari-  Bank  v.  Tilton,  15  Abb.  Pr.  384; 
Morgan  v.  Reid,  7  Abb.  Pr.  215;  Jackson  v.  Parkhurst,  I  Wend. 
369;  Hag  v.  Douglas,  8  Abb.  Pr.  K  S.  220;  Forrest  v.  Forrest. 
6  Duer,  102. 

Under  the  provision  of  the  New  York  Code  of  Criminal  Pro- 
cedure (§  528,  as  amended  by  chap.  493,  Laws  of  ls^7j,  vestingin 


2G2  LAW    OF    EVIDENCE    IN    CRIMINAL    CASES. 

the  court  of  appeals  jurisdiction  to  examine  the  record  on  appeal 
in  a  criminal  action  "where  the  judgment  is  of  death,"  and  to 
determine  upon  the  whole  case  whether  "the  verdict  was  against 
the  weight  of  evidence  or  against  law,  or  that  justice  requires  a 
new  trial,  whether  any  exceptions  shall  have  been  taken  or  not  in 
the  court  below,"  the  defendant  is  not  given  and  may  not  claim, 
as  matter  of  right  in  this  court,  the  benefit  of  errors  occurring  on 
the  trial;  the  failure  to  make  proper  objections  and  take  excep- 
tions deprives  them  of  that  right;  the  court  is  simply  vested  with 
a  power  in  its  discretion  to  disregard  the  neglect  and  without  re- 
gard to  exceptions  to  review  the  case  upon  the  merits.  People 
v.  Driscoll,  107  K  Y.  414. 

The  supreme  court  of  Michigan  say,  in  Wellar  v.  Peojrfe,  30 
Mich.  20,  that  "there  is  no  rule  recognized  as  authority  which 
allows  a  conviction  of  murder  where  a  fatal  result  was  not  in- 
tended, unless  the  injury  intended  was  one  of  a  very  serious 
character,  which  might  naturally  and  commonly  involve  loss  of 
life  or  grievous  mistake."  The  court  further  say  that  any  doc- 
trine which  would  hold  every  assailant  as  a  murderer,  where  death 
follows  his  act,  would  be  barbarous  and  unreasonable.  Mr. 
Wharton  in  his  work  upon  Criminal  Evidence  (§  738),  says  the 
doctrine  that  malice  and  intent  are  presumptions  of  law,  to  be 
presumed  from  the  mere  act  of  the  killing,  belongs,  even  if  cor- 
rect, to  purely  speculative  jurisprudence,  and  cannot  be  applied  to 
any  case  that  can  possibly  arise  before  the  courts;  that  in  no  case 
can  the  prosecution  limit  its  proof  to  the  mere  act  of  killing. 
Kent  v.  People,  8  Colo.  5G3. 


PART  II. 


THE  INSTRUMENTALITIES  OF  EVIDENCE. 

CIIAPTEE  XXYIII. 

SECURING  THE  ATTENDANCE  OF  WITNESSES. 

§187.  Subpoena,  the  Term  Defined  by  Bouvier. 

188.  Constitutional  Guaranties  to  the  Right  to  this  Process. 

189.  Characteristics  of  the  Writ. 

190.  United  States  Revised  Statutes  on  the  Subject. 

191.  Comments  on  the  Writ. 

192.  Views  of  Mr.  Justice  Thornton. 

193.  Code  Provisions  on  the  Subject. 

a.  Tennessee. 

b.  Minnesota. 

c.  California. 

194.  Writ  of  Habeas  Corpus  may  Issue  when? 

§  1ST.  Subpoena,  the  Term  Defined  by  Bouvier. — Subpoena 
is  "A  process  to  cause  a  witness  to  appear  and  give  testimony, 
•commanding  him  to  lay  aside  all  pretenses  and  excuses,  and  ap- 
pear before  a  court  or  magistrate  therein  named,  at  a  time  therein 
mentioned,  to  testify  for  the  party  named,  under  a  penalty  there- 
in mentioned.  This  is  usually  called  a  subpoena  ad  testificandum. 
On  proof  of  service  of  a  subpoena  upon  the  witness,  and  that  he 
is  material,  an  attachment  may  be  issued  against  him  for  a  con- 
tempt, if  he  neglect  to  attend  as  commanded." 

Subpoena  duces  tecum,  is  a  writ  or  process  of  the  same  hind  as 
the  subpoena  ad  testificandum,  including  a  clause  requiring  the 
witness  to  bring  with  him  and  produce  to  the  court,  books,  pa- 
pers, etc.,  in  his  hands,  tending  to  elucidate  the  matter  in  issue. 
3  1'A.  Com.  382;  Bouvier,  Law  Diet,  title  Subpoena. 

Briefly,  it  is  "the  process  by  which  the  attendance  of  a  witness 
before  a   court   or  magistrate   is  required."     JN.  Y.  Code   Crim. 

Proc.  Go  7. 

203 


261  LAW    OF    EVIDENCE    IN    CRIMINAL    CASES. 

It  is  the  duty  of  the  clerk  of  the  court  at  which  the  indictment 
is  to  be  tried  to  issue  without  charge  as  many  subpoenas  as  may 
be  necessary.  New  York  Code  Crim.  Proc.  611.  See  also  Sher- 
win  v.  People,  100  N.  Y.  351. 

§  188.  Constitutional  Guaranties  to  the  Right  to  this 
Process. — The  constitution  of  the  United  States,  and  the  consti- 
tutions, or  statutes,  of  the  several  states,  secure  to  the  accused  the 
right  to  compulsory  process  for  obtaining  witnesses  in  his  behalf. 
An  application  may  be  made  during  the  trial.  This  provision 
has  been  interpreted  to  mean  that  the  accused  shall  not  be  de- 
barred the  right  of  issuing  subpcenaes  for  his  witnesses,  as  in  civil 
cases,  and  not  to  entitle  him,  on  application,  to  a  decree  of  the 
court  for  an  allowance  to  secure  their  attendance.  The  court 
may  direct  an  officer  to  serve  such  process  for  a  pauper  defend- 
ant.    Abbott,  Trial  Brief,  §§  204-206. 

The  constitutional  provision  referred  to  reads  as  follows : 

"In  all  criminal  prosecutions,  the  accused  shall  enjoy  the  right 
to  a  speedy  and  public  trial,  by  an  impartial  jury  of  the  state  and 
district  wherein  the  crime  shall  have  been  committed,  which  dis- 
trict shall  have  been  previously  ascertained  by  law,  and  to  be  in- 
formed of  the  nature  and  cause  of  the  accusation;  to  be  confronted 
with  the  witnesses  against  him;  to  have  compulsory  process  for 
obtaining  witnesses  in  his  favor,  and  to  have  the  assistance  of 
counsel  for  his  defense."     Desty,  Fed.  Const.  Amendments,  art.  6. 

§  189.  Characteristics  of  the  Writ. — Where  a  witness  can- 
not be  trusted  to  voluntarily  appear,  he  may  be  compelled  to  en- 
ter into  a  recognizance  for  his  aj)pearance,  in  default  of  which  he- 
may  be  committed  until  the  time  of  his  examination  arrives.  See 
United  States  v.  Butler,  1  Cranch,  C.  C.  422;  Ex  parte  Shaw,  61 
Cal.  58;  Bicldey  v.  Corn.  2  J.  J.  Marsh.  572;  State  v.  Grace,  18 
Minn.  398;  State  v.  Zellers,  7  N.  J.  L.  265;  Means  v.  State,  10 
Tex.  App.  16,  3S  Am.  Rep.  610.  "Where  the  witness  is  required 
to  bring  books  or  papers  with  him,  a  subpoena  duces  tecum  should 
be  served.  See  Waring  v.  Warren,  1  Johns.  310;  Ex  parte 
Jaynes,  70  Cal.  638.  Under  some  circumstances  a  bench  warrant 
will  issue  to  enforce  the  attendance  of  a  witness,  who,  having 
been  duly  subpoenaed,  fails  to  appear  when  called  to  testify.  See 
People  v.  Marseiler,  70  Cal.  98;  Rapalje,  Crim.  Proc.  §  289. 

Disobedience  to  a  subpoena,  or  a  refusal  to  be  sworn  or  to  tes- 


SECURING    THE    ATTENDANCE    OF    WITNESSES.  265 

tify,  may  be  punished  by  the  court  or  magistrate  as  for  a  crimi- 
nal contempt. 

Until  a  witness  not  attending  under  a  subpoena  shall  have  been 
brought  before  the  court  or  magistrate  issuing  such  subpoena,  he 
is  liable  only  civilly,  not  criminally.  Reg.  v.  Rendle,  11  Cox,  C. 
C.  209;  Mo  parte  Langdon,  25  Vt.  682;  State  v.  Matthews,  37  N. 
H.  450;  K  Y.  Code  Crim.  Proc.  §  019;  N.  Y.  Code  Civ.  Proc. 
§  853;  Com.  v.  Newton,  1  Grant,  Cas.  451;  People  v.  Nevins,  1 
Hill,  158;  Mack  v.  People,  82  K  Y.  236.  No  man  can  be  pro- 
ceeded against  for  a  criminal  contempt  arising  from  his  alleged 
disobedience  of  a  subpoena  until  after  he  shall  have  been  given 
the  opportunity  to  explain  to  the  court  issuing  the  subpoena,  his 
ambiguous  act.  People  v.  Few,  2  Johns.  290;  People  v.  Van 
Wych,  2  Cai.  334;  Reg.  v.  Russell,  7  Dow.  P.  C.  693;  1  Gabbett, 
Crim.  Law,  287;  Reg.  v.  Zefroy,  L.  P.  8  Q.  B.  134;  2  Bishop, 
Crim.  Law,  §  268;  Whart.  Crim.  PI.  &  Pr.  [8th  ed.]  §  968;  State 
v.  Nixon,  Wright  (Ohio)  763;  MeConnell  v.  State,  46  Inch  298; 
Whitten  v.  State,  36  Ind.  211-213;  Pitt  v.  Davison,  37  K  Y.  239; 
People  v.  Wilson,  64  111.  205, 16  Am.  Pep.  528;  Scholes  v.  Hilton, 
10  Mees.  &  W.  15. 

§  190.  United  States  Revised  Statutes  on  the  Subject. — 
"Witnesses  who  are  required  to  attend  any  term  of  the  circuit  or 
district  court  on  the  part  of  the  United  States,  shall  be  subpoe- 
naed to  attend  to  testify  generally  on  their  behalf,  and  not  to  de- 
part the  court  without  leave  thereof,  or  of  the  district  attorney 
and  under  such  process  they  shall  appear  before  the  grand  or  petit 
jury,  or  both,  as  they  may  be  required  by  the  court  or  district 
attorney.     U.  S.  Rev.  Stat.  §  877. 

§  191.  Comments  on  the  Writ. — Witnesses  so  subpcenaed 
may  be  required  to  enter  into  a  recognizance  conditioned  upon 
their  due  appearance  before  the  trial  court;  and  upon  their 
refusal,  they  may  be  committed  and  held  in  custody  until  the 
trial.  See  Greenl.  Ev.  §  313.  It  may  well  be  doubted,  whether 
this  method  of  securing  evidence,  even  in  an  important  criminal 
case  does  not  infringe  both  constitutional  and  common  law  rights, 
especially  in  that  large  class  of  cases  where  it  does  not  appear 
that  there  is  the  least  intention  on  the  part  of  the  witness  to  evade 
the  responsibilities  of  the  witness  box. 

The  case  of  the  United  States  v.  Lloyd,  1  Blatchf.427,  furnishes 
instructive  reading  upon  this  subject.     .)//■.  Justify   Betts  in  com- 


266  LAW  OF  EVIDENCE  IN  CRIMINAL  CASES. 

meriting  upon  this  pitiable  condition  of  a  witness,  says:  "This 
case  illustrates  some  of  the  manifold  hardships  and  inequities  to 
which  witnesses  are  liable,  under  the  authority  and  administration 
of  the  laws  which  subject  them,  in  criminal  cases,  to  be  impris- 
oned in  close  confinement  at  the  discretion,  in  a  good  measure,  of 
public  prosecutors,  to  await  a  summons  into  court  to  testify  on 
behalf  of  the  United  States.  These  laws  afford  no  exemption  for 
the  aged,  or  the  feeble,  or  those  who,  from  infirmities  of  body  or 
mind,  are  dependent  on  the  attention  and  the  services  of  others, 
-or  who  must  be  separated,  by  such  arrest  or  detention,  from  the 
most  stringent  calls  of  their  own  business,  or  from  supplying  help 
or  solace  to  their  families  or  friends,  in  the  extremest  exigencies 
•of  sickness  or  destitution." 

There  is  a  disposition  on  the  part  of  the  American  judiciary  to 
insist  upon  the  actual  confinement  of  witnesses  only  in  cases  where 
it  appears  that  there  is  a  design  on  his  part  not  to  attend  the  trial 
and  give  his  evidence.  The  Minnesota  supreme  court  so  held  in 
the  case  of  State  v.  Grace,  18  Minn.  398,  in  which  the  Chief  Jus- 
tice says:  "But  though  the  witness  may  be  required  to  recognize 
in  the  discretion  of  the  court,  the  discretion  (or  judgment)  here 
spoken  of  must,  as  in  all  other  like  cases,  be  intended  to  be  a 
sound  legal  discretion.  The  judgment  of  the  court  cannot  be 
capriciously  exercised.  It  cannot  legally  abuse  its  discretion,  nor, 
indeed,  is  it  to  be  presumed  that  it  will,  if,  for  instance,  it  wil} 
be  unjust  or  oppressive,  and  against  common  law  and  common 
right,  as  it  certainly  would  be  {Evans  v.  Bees,  12  Ad.  &  El.  55; 
1  Greenl.  Ev.  313;  1  Burn,  Justice  (24th  ed.)  1013;  1  Archb. 
Crim.  Pr.  &  PI.  48)  to  commit  such  material  witness  in  default 
of  bail,  without  any  proof  that  he  had  any  intention  of  not  appear- 
ing and  testifying  when  duly  subpoenaed,  but  who  is  too  poor  to 
render  his  recognizance  of  any  value,  or  too  friendless  to  be  able 
to  give  bail." 

The  judicial  "discretion"  here  spoken  of  has  been  further  defined 
to  be  "the  exercise  of  final  judgment  by  the  court  in  the  decision 
of  such  questions  of  fact  as,  from  their  nature  and  the  circum- 
stances of  the  case,  come  peculiarly  within  the  province  of  the 
presiding  judge  to  determine."  Buncly  v.  Hyde,  50  ]ST.  H.  116, 
1  20.  "Judicial  discretion,  in  its  technical,  legal  sense,  is  the  name 
of  the  decision  of  certain  questions  of  fact  by  the  court."  Dar- 
ling  v.  Westmoreland,  52  IN.  H.  401,  40S.  Koscoe,  Crim.  Ev.  (7th 
«d.)  95;  State  v.  Lapage,  57  K  II.  245. 


SECURING    THE    ATTENDANCE    OF    WITNESSES.  267 

""Where  there  is  a  witness  residing  in  another  district,  the  process 
-of  the  court  goes  to  that  district.  It  is  issued  to  the  marshall  of  that 
district,  and  it  is  the  duty  of  the  person  to  whom  it  is  addressed,  if 
he  has  the  means,  to  travel  here  to  give  his  testimony.  If  he  has 
not,  the  proper  officer  of  the  Government  will  furnish  him  with 
means.  It  is  not  necessary,  if  he  has  the  means,  that  the  fees  should 
be  tendered  to  him  before  he  is  required  to  obey  the  process.  An 
attachment  would  issue  and  the  court  would  punish  a  man  who 
•could  pay  his  expenses  and  would  not  come  because  the  money  was 
not  tendered.  It  is  only  where  a  man  has  not  the  means  of  pay- 
ing his  expenses,  that  it  is  necessary  for  the  money  to  be  tendered 
\p  the  witness  in  order  to  make  it  incumbent  on  him  to  obey  the 
process  of  the  court. 

"...  Those  witnesses  who  have  not  the  means  of  attend- 
ing court  must  bo  furnished  witli  tin;  means  when  the  subpoena  is 
served,  and  if  there  is  doubt  entertained  of  their  being  present  at 
the  trial  they  must  be  compelled  to  give  security;  if  they  fail  to 
do  so,  they  must  be  held  in  custody  until  the  trial."  United 
States  v.  Burling,  1  Biss.  500;  Ex  parte  Sham,  61  Cal.  5S;  State 
v.  Zellers,  7  K  J.  L.  220;  United  States  v.  Butler,  1  Cranch,  C. 
C.  422;  BicMey  v.  Com.  2  J.  J.  Marsh.  572;  State  v.  Walsh,  3  N. 
J.  L.  J.  119;  Means  v.  State,  10  Tex.  App.  16,  38  Am.  Kep.  610; 
State  v.  Grace,  IS  Minn.  398. 

§  192.  Views  of  Mr.  Justice  Thornton. — The  serious  position 
that  an  indictment  compels  the  accused  to  occupy,  forces  upon  our 
consideration  a  very  grave  question  connected  with  the  right  of  a 
person  so  circumstanced,  to  demand  the  production  of  certain  evi- 
dence, or  to  compel  the  attendance  of  certain  parties  who  are  the 
custodians  of  information,  and  may  operate  in  his  favor.  The 
student  of  constitutional  law  is  doubtless  familiar  with  that  pro- 
viso, that  we  find  embodied  in  the  organic  law  of  nearly  every 
state,  which  guarantees  to  the  humblest  citizen,  the  right  to  have 
the  process  of  the  courts  set  in  motion  to  compel  the  attendance 
of  witnesses  on  his  behalf.  He  has  the  same  right  to  this  process 
that  he  has  to  appear  and  defend  in  person  and  with  counsel  - 
both  are  the  inseparable  concomitants  of  American  citizenship, 
immutable  guarantees  that  survive  all  individual  disaster  and  con- 
trol the  solemnities  of  judicial  proceeding. 

If  it  be  objected  that  this  statement  is  a  truism  within  tlio 
knowledge  of  the  most  nascent  intelligence    I  will   only  remark, 


268  LAW    OF    EVIDENCE    IN    CRIMINAL    CASES. 

that  it  has  been  the  subject  of  hot  contention  in  the  very  recent 
case  before  the  supreme  court  of  California;  and  a  majority  of  the 
court  pronounce  a  rule  utterly  at  variance  with  principles  that 
have  heretofore  received  as  declaratory  of  a  law  that  antedates 
the  unification  of  our  government.  The  case  referred  to  is  that 
of  Willard  v.  Santa  Barbara  County  Sup.  Ct.  82  Cal.  456,  and 
was  decided  in  1S90.  The  dissenting  opinion  of  Judge  Thornton 
states  the  law  in  language  that  leaves  no  room  for  doubt  as  to  the 
position  occupied  by  one  jurist  in  that  state,  on  a  very  important 
subject.  Few  questions  can  more  immediately  concern  that  frac- 
tion in  our  community  so  unfortunate  as  to  be  under  the  accusa- 
tion of  crime,  and  the  extent,  nature  and  scope  of  their  right  to> 
produce  evidence  to  relieve  the  horrors  of  their  position  through 
the  media  of  the  court's  process.  And,  while  we  are  not  prepared 
to  countenance  an  indiscriminate  excerpting  from  dissenting  opin- 
ions by  even  such  an  eminent  jurist  as  Judge  Thornton  has  long 
been  known  to  be,  we  are  constrained  to  an  exception  in  this 
instance.  The  opinion  proceeds  in  the  following  language: 
"This  process  (of  subpoena)  cannot  be  denied  to  the  defendant  by 
any  power  of  the  state,  legislative,  executive  or  judicial.  The 
constitution  assures  this  right  to  a  defendant  accused  of  felony. 
It  needs  no  statute  to  confer  it.  The  constitution  confers  it,  and  it 
cannot  be  taken  away  by  statute. 

"The  law  by  its  very  terms  refers  only  to  a  witness  for  the  peo- 
ple, not  to  a  witness  for  the  defendant.  It  grants  the  right  to- 
the  defendant  to  have  the  deposition  of  his  witness  taken,  when 
the  witness  is  confined  in  the  state  prison  or  in  the  county  jail  of 
a  county  other  than  that  in  which  the  defendant  is  to  be  tried,  in 
the  manner  provided  for  in  the  case  of  a  witness  who  is  sick,  but 
he  is  not  bound  to  have  the  testimony  of  the  witness  so  taken. 
He  can  waive  his  constitutional  right  and  have  the  deposition 
taken,  should  he  so  elect.  But  it  is  entirely  at  his  option  to  have' 
the  witness  compelled  to  attend,  or  to  have  his  testimony  taken 
by  deposition.  .  .  .  Doubtless  the  accused  would  elect  to 
have  the  deposition  taken,  if  the  witness  was  unable  from  illness 
to  attend,  rather  than  lose  his  testimony.  The  legislature  cannot 
.  .  .  restrict  one  on  trial  in  a  criminal  action  to  having  the 
testimony  procured  by  deposition. 

"The  guaranty  of  the  constitution  ...  is  for  the  benefit 
of  the  defendant  in  criminal  actions.     JNo  such  guaranty  is  given 


SECURING    THE    ATTENDANCE    OF    WITNESSES.  269 

to  the  people.  .  .  .  Convicted  felons  are  now  competent 
witnesses.  But  as  at  present  advised,  we  are  not  prepared  to 
hold  that  the  legislature  can  .  .  .  enact  that  a  witness,  ma- 
terial for  the  defense  of  a  person  accused  and  on  trial  for  a  felo- 
ny, shall  be  declared  incompetent  to  testify  for  the  defense. 
•Certain  we  are  that  no  such  legislation  will  ever  be  attempted 
while  the  constitution  remains  unchanged.  It  would  be  cruel  to 
withhold  such  testimony  from  a  person  tried  for  an  offense  which 
may  result  in  his  deprivation  of  liberty. 

''The  guaranty  that  a  defendant  shall  'have  the  process  of  the 
court  (i.  e.,  a  subpoena)  to  compel  the  attendance  of  witnesses  in 
his  behalf,'  as  the  guaranties  of  a  speedy  and  public  trial,  and  to 
appear  and  defend  in  person  and  with  counsel,  is  assured  in  the 
same  section  of  the  constitution.  Other  guaranties  are  also  ex- 
pressed in  the  same  section.  A  state  legislature  cannot  deprive 
defendant  of  any  of  these  rights.     .     .     . 

"  'It  is  to  the  interest  of  the  people,  as  well  as  the  defendant, 
that  the  witnesses  of  the  latter  should  be  made  to  give  their  tes- 
timony  in  the  presence  of  the  jury,  for  we  all  know,  by  daily 
experience,  how  much  weight  is  added  to  or  taken  from  the  testi- 
mony by  the  personal  appearance,  bearing,  and  manner  of  the 
witness  while  under  examination;  if  these  add  to  the  weight  of 
his  testimony,  the  defendant  ought  not  to  be  deprived  of  such 
effect,  except  upon  the  grounds  of  necessity;  and  if  they  detract 
therefrom,  such  effect  should  be  secured  to  the  people  in  order 
that  the  ends  of  public  justice  may  be  subserved.  Thus  this  rule 
requiring  the  personal  attendance  of  witnesses,  if  the  same  can  be 
had,  is  founded  upon  considerations  of  the  wisest  policy;  and  the 
various  statutory  provisions  whereby  the  defendant  is  enabled  to 
examine  conditionally  on  commission  a  witness  who  is  about  to 
leave  the  state,  or  is  sick  or  infirm,  as  to  afford  reasonable  grounds 
for  apprehending  that  he  will  be  unable  to  attend  the  trial,  were 
not  designed  to  impair  the  rule  or  abridge  the  previous  rights  of 
the  defendant,  but,  on  the  contrary,  to  enlarge  those  rights  by 
enabling  him  to  secure  testimony  of  which  he  would  otherwise  be 
deprived,  and  at  the  same  time  preserve  the  rule  in  full  force,  so 
faras  the  same  could  be  done  in  view  of  the  right  conferred  by 
the  statute.'  People  v.  Dodge,  28  Cal.  44S.  See  People  v. 
Francis,  38  Cal.  183;  People  v.  Mitchell,  64  Cal.  85. 

"A  defendant  has  the  constitutional  right  to  have  the  witnesses 


270  LAW    OF    EVIDENCE    IN    CRIMINAL   CASES. 

against  him  examined  in  open  court  and  in  his  presence.  By  the- 
guaranty  of  due  process  of  law  he  has  a  right  to  be  confronted 
with  the  witnesses  for  the  prosecution.  The  correlative  right  is 
given  him  to  have  the  witnesses  in  his  behalf  testily  in  open 
court. 

"One  further  proposition  should  be  stated.  .  .  .  The  state 
owes  equal  and  exact  justice  to  those  under  its  authority  in  all 
proceedings  against  them.  It  can  have  no  higher  justifiable  right 
as  to  witnesses  than  the  defendant.  Nor  should  nor  does  it  ask 
any  higher  right  in  this  regard.  If  anything,  it  should  be  con- 
tent with  an  inferior  right.  It  holds  the  lists  and  appoints  the 
president  thereof,  in  which  the  contest  between  the  people  and 
the  defendant  on  trial  is  waged.  And  the  defendant  might  truly 
say  that  equal  justice  has  not  been  done,  when  the  state  can  com- 
pel the  attendance  of  a  witness  to  prove  his  guilt,  and  the  defend- 
ant cannot  compel  the  attendance  of  a  witness  in  like  circum- 
stances to  establish  his  innocence.  Justice,  as  Lord  Coke  says, 
should  be  free,  full,  and  speedy;  free,  because  nothing  is  more 
unjust  than  justice  which  has  to  be  bought;  full,  because  justice 
ought  not  to  halt  or  be  maimed;  and  speedy,  because  delay  is  to 
some  extent  a  denial  of  justice.     See  Coke,  Inst.pt.  2,  p.  55. 

"It  should  be  recollected  that  a  witness  brought  from  the  state 
prison  might  clearly  show  the  defendant's  freedom  from  guilt. 
The  difference  between  the  living  speaking  witness  before  a  jury, 
and  the  inanimate  lines  of  a  deposition,  is  recognized  by  all  fa- 
miliar with  courts  of  justice.  As  is  well  said  in  an  old  act  of 
Parliament  of  9  Edward  II.,  styled  Articuli  Cleri,  in  referring  to 
a  trial  by  jury:  'We  hold,  and  shall  be  able  to  approve  it  to  be 
a  far  better  course  for  matter  of  fact  upon  the  testimony  of  wit- 
nesses, sworn  viva  voce,  than  upon  the  conscience  of  any  one  par- 
ticular man,  being  guided  by  paper  proofs.'  See  Coke,  Inst.  pt. 
2,  p.  Gil. 

"Especially  would  this  be  the  case  with  a  convict  in  prison 
brought  from  a  state  prison.  He  comes  with  the  stain  of  convic- 
tion on  his  credit.  But  his  appearance  and  manner,  under  the 
ordeal  in  open  court  of  examination  and  cross-examination,  might 
assuredly  show  to  court  and  jury  that  he  is  a  perfectly  reliable 
witness,  and  establish  beyond  question  the  innocence  of  the  per- 
son on  trial.  Should  a  defendant  then  be  deprived  of  this- 
right?" 


SECURING    THE    ATTENDANCE    OF    WITNESSES.  271 

§  193.  Code  Provisions  on  the  Subject. 

a.  Tennessee. — Statutory  provisions  of  the  Tennessee  Code 
as  contained  in  §§  6225-6232,  inclusive,  are  typical  of  the 
modern  law  relative  to  this  subject.  The  sections  referred  to 
provide  as  follows :  "  The  magistrate  before  whom  an  infor- 
mation is  made,  may  issue  subpoenas  to  any  part  of  the  state 
for  witnesses,  on  behalf  either  of  the  defendant  or  the  state. 
The  clerk  of  the  court  in  which  a  criminal  cause  is  pending,  shall 
issue  subcenas,  at  any  time,  to  any  part  of  the  state,  for  such 
witnesses  as  either  the  district  attorney  or  the  defendant  may  re- 
quire. He  shall  also  issue  a  subpoena,  without  any  application, 
for  witnesses,  whose  names  are  marked  as  such  by  the  district 
attorney  upon  the  indictment.  The  clerk  of  the  court  should 
make  the  subpoena  returnable  on  the  day  fixed  by  the  law,  or  by 
the  court,  for  taking  up  the  criminal  business  of  the  term,  or  the 
particular  case.  The  subpoena  is  served  in  the  same  way  and  by 
the  same  officers  as  the  subpoena  in  civil  cases.  If  the  witness 
conceal  himself  to  avoid  the  service  of  a  subpoena,  the  officer  may 
make  service  by  leaving  a  copy  posted  on  the  door  or  other  con- 
spicuous place.  Proceedings  may  be  had  against  defaulting  wit- 
nesses in  criminal  cases,  as  prescribed  in  civil  cases.  The  under- 
taking of  recognizance  of  witnesses  is  forfeited  and  enforced  like 
the  undertaking  and  recognizance  of  bail." 

b.  Minnesota. — Where  the  prisoner  is  admitted  to  bail,  or  com- 
mitted by  the  magistrate,  he  shall  also  bind  by  recognizance  such 
witnesses  against  the  prisoner  as  he  deems  material,  to  appear  and 
testify  at  the  next  court  having  cognizance  of  the  offense,  and  in 
which  the  prisoner  is  held  to  answer. 

If  the  magistrate  is  satisfied  that  there  is  a  good  cause  to  believe 
that  any  such  witness  will  not  perform  the  condition  of  his  recog- 
nizance unless  other  security  is  given,  such  magistrate  may  order 
the  witness  to  enter  into  a  recognizance,  with  such  sureties  as  may 
be  deemed  necessary,  for  his  appearance  at  court. 

When  any  married  woman  or  minor  is  a  material  witness,  any 
other  person  may  be  allowed  to  recognize  for  the  appearance  of 
such  witness;  or  the  magistrate  may,  in  his  discretion,  take  the 
recognizance  of  such  married  woman  or  minor  in  a  sum  not 
exceeding  fifty  dollars. 

All  witnesses  required  to  recognize,  either  with  or  without  sure 
ties,  shall,  if  they  refuse,  be  committed  to  prison  by  the  magistrate 


372  LAW    OF    EVIDENCE   IN   CRIMINAL   CASES. 

there  to  remain  until  they  comply  with  such  order,  or  are  dther- 
wise  discharged  according  to  law. 

It  shall  not  be  lawful,  except  in  cases  of  murder  in  the  first 
degree,  arson,  where  human  life  is  destroyed,  and  cruel  abuse  to 
children,  to  commit  or  imprison  any  witness  who  is  willing  and 
offers  to  enter  into  his  or  her  own  recognizance,  without  sureties, 
to  appear  and  testify  in  the  case  or  prosecution  in  which  his  or 
her  testimony  is  required.  All  persons  held  as  witnesses  shall 
receive  such  compensation  during  confinement  as  the  judge  of  the 
court  in  which  the  case  is  pending  shall  direct,  not  exceeding  reg- 
ular  witness  fees.  1872,  chap.  77,  §  1;  Minn.  Stat.  chap.  106, 
§§  19-23. 

c.  California. — The  process  by  which  the  attendance  of  a  wit- 
ness before  a  court  or  magistrate  is  required  is  a  subpoena:  It 
may  be  signed  and  issued  by — ■ 

1.  A  magistrate  before  whom  a  complaint  is  laid,  for  witnesses 
in  the  state,  either  on  behalf  of  the  people  or  of  the  defendant. 

2.  The  district  attorney,  for  witnesses  in  the  state,  in  support 
of  the  prosecution,  or  for  such  other  witnesses  as  the  grand  jury, 
upon  an  investigation  pending  before  them,  may  direct. 

3.  The  district  attorney,  for  witnesses  in  the  state,  in  support 
of  an  indictment  or  information,  to  appear  before  the  court  in 
which  it  is  to  be  tried. 

4.  The  clerk  of  the  court  in  which  an  indictment  or  informa- 
tion is  to  be  tried;  and  he  must,  at  any  time,  upon  an  application 
of  the  defendant,  and  without  charge,  issue  as  many  blank  sub- 
pcenaes,  subscribed  by  him  as  clerk,  for  witnesses  in  the  state,  as 
the  defendant  may  require. 

A  subpoena  may  be  served  by  any  person,  but  a  peace  officer 
must  serve  in  his  county  any  subpoena  delivered  to  him  for  service, 
either  on  the  part  of  the  people  or  of  the  defendant,  and  must, 
without  delay,- make  a  written  return  of  the  service,  subscribed 
by  him,  stating  the  time  and  place  of  service.  The  service  is 
made  by  showing  the  original  to  the  witness  personally,  and 
informing  him  of  its  contents. 

When  a  person  attends  before  a  magistrate,  grand  jury,  or  court, 
as  a  witness  in  a  criminal  case,  upon  a  subpoena  or  in  pursuance 
of  an  undertaking,  and  it  appears  that  he  has  come  from  a  place 
outside  of  the  county,  or  that  he  is  poor  and  unable  to  pay  the 
expenses  of  such  attendance,  the  court,  at  its  discretion,  if  the 


SECURING    THE    ATTENDANCE    OF    WITNESSES.  273 

attendance  of  the  witness  be  upon  a  trial,  by  an  order  upon  its 
minutes,  or,  in  an}'  other  ease,  the  judge,  at  his  discretion,  bv  a 
written  order,  may  direct  the  county  auditor  to  draw  his  warrant 
upon  the  county  treasurer  in  favor  of  witness  for  a  reasonable 
sum,  to  be  specified  in  the  order,  for  the  necessary  expenses  of 
the  witness. 

No  person  is  obliged  to  attend  as  a  witness  before  a  court  or 
magistrate  out  of  the  county  where  the  witness  re-ides,  or  is  served 
with  the  subpoena,  unless  the  judge  of  the  court  in  which  the 
offense  is  triable,  or  a  justice  of  the  supreme  court,  or  a  judge  of 
a  superior  court,  upon  an  affidavit  of  the  district  attorney  or  prose- 
cutor, or  of  the  defendant,  or  his  counsel,  stating  that  he  believes 
the  evidence  of  the  witness  is  material,  and  his  attendance  at  the 
examination  or  trial  necessary,  shall  indorse  on  the  subpoena  an 
order  for  the  attendance  of  the  witness. 

Disobedience  to  a  subpoena,  or  a  refusal  to  be  sworn  or  to  testi- 
fy as  a  witness,  may  be  punished  by  the  court  or  magistrate  as  a 
•contempt. 

"When  a  witness  lias  entered  into  an  undertaking  to  appear,  upon 
his  failure  to  do  so  the  undertaking  is  forfeited  in  the  same  man- 
ner as  undertakings  of  bail. 

"When  the  testimony  of  a  material  witness  for  the  people  is 
required  in  a  criminal  action,  before  a  court  of  record  of  this  state, 
and  such  witness  is  a  prisoner  in  the  state  prison  or  in  a  county 
jail,  an  order  for  his  temporary  removal  from  such  prison  or  jail, 
and  for  his  production  before  such  court,  may  be  made  by  the 
court  in  which  the  action  is  pending,  or  by  the  judge  thereof;  but 
in  case  the  prison  or  jail  is  out  of  the  county  in  which  the  appli- 
cation is  made,  such  order  shall  only  be  made  upon  the  affidavit 
of  the  district  attorney,  or  other  person,  on  behalf  of  the  people, 
showing  that  the  testimony  is  material  and  necessary;  and  even 
then  the  granting  of  the  order  shall  be  in  the  discretion  of  the 
court  or  judge.  The  order  shall  be  executed  by  the  sheriff  of  the 
county  in  which  it  shall  be  made,  whose  duty  it  shall  lie  to  bring 
the  prisoner  before  the  proper  court,  to  safely  keep  him,  and  when 
he  is  no  longer  required  as  a  witness,  to  return  him  to  the  prison 
or  jail  whence  he  was  taken;  the  expense  of  executing  such  order 
shall  be  paid  by  the  county  in  which  the  order  shall  he  made. 
Desty,  Cal.  Penal  Code,  §§1326    L333. 

§194.  Writ  of  Habeas  Corpus  may  Issue  when. — Theattend- 
L8 


274  LAW    OF    EVIDENCE    IN    CRIMINAL   CASES. 

ance  of  a  witness  in  prison  may  be  secured  by  a  habeas  corpus  ad 
tcstifi<;in<htiii.  See  Rex  v.  Eoddam,  Cowp.  072;  /State  v.  Ken- 
nedy, 20  Iowa,  509.  To  this  writ  it  is  ordinarily  a  prerequisite 
that  the  party  desiring  the  attendance  of  a  witness  should  make 
affidavit  before  a  judge  at  chambers  that  the  witness  in  question 
is  material  to  the  case,  but  is  in  custody,  whether  on  criminal  or 
civil  process.  Cbitty,  Forms,  00;  Marsden  v.  Overbury,  18  C. 
B.  34;  Gordon's  Case,  2  Maule  &  S.  582;  Browne  v.  Gisborne,  2. 
Dowl.  K  S.  903;  Graham  v.  Glover,  5  El.  &  Bl.  591.  A  party 
to  the  record,  who  is  entitled  to  testify  in  the  case,  if  he  be  in. 
prison,  is  entitled  to  use  this  writ  in  order  that  he  himself  may  be 
brought  into  court.  Ex  parte  Cobbett,  4  Jur.  1ST.  S.  145.  The 
same  writ  has  been  issued  to  secure  the  presence  in  court  of  a  per- 
son confined  as  a  lunatic.  Fennell  v.  Tait,  1  Cromp.  M.  &  R.. 
5S4;  Whart.  Crim.  Ev.  (9th  ed.)  §  351.  See  also  Maxwell  v.Rives,. 
11  Xev.  213. 


CHAPTER   XXIX. 
COMPETENCY  AND  CREDIBILITY  OF  WITNESSES. 

§  195.   The  Term  Defined. 

196.  Competency  Generally  Presumed. 

197.  General  Abrogation  of  Former  Disqualifying  Linn. 

198.  New  York  and  California  Rules  Relating  to  the  Subject. 

199.  Theory  of  Chief  Justice  Appleton. 

200.  Exceptions  to  the  General  Rule. 

a.  Husband  mid  Wife. 

b.  Exception  Arising  from  Lunacy  or  Intoxication. 

c.  Exception  as  to  Deaf  Mutes. 

d.  Exception  as  to  Infancy. 

e.  Summary  of  the  l'<  Exceptions. 

201.  Credibility  of  Witnesses  is  for  the  Jury. 

202.  Effect  of  False  Testimony  on  Credibility. 

§  195.  The  Term  Defined. — A  witness  is  one  who,  being 
sworn  or  affirmed,  according  to  law,  deposes  as  to  his  knowledge 
of  facts  in  issue  between  the  parties  in  a  cause.  Bouvier,  Law 
Diet,  title  Witness. 

§  196.  Competency  Generally  Presumed. — All  persons  are 
competent  to  testify  in  all  cases  except  as  hereinafter  excepted. 
Stephen,  Dig.  art.  106. 

The  principle  above  stated  as  to  the  general  competency  of  all 
persons,  for  the  witness  stand  has  obtained  wide  acknowledgment 
and  found  expression  in  statutory  enactments  in  all  the  American 
states.  Of  the  thirty-one  states  now  under  the  code  system,  the 
rule  as  formulated  by  the  codes  of  California  and  Xew  York, 
may  be  taken  as  a  type  of  the  present  law  which  finds  expression 
in  the  first  named  code  in  the  following  language :  "All  persons 
without  exception,  who,  having  organs  of  sense,  can  perceive,  and 
perceiving,  can-  make  known  their  perceptions  to  others,  may  be 
witnesses."  Therefore,  neither  parties  nor  other  persons  who  have 
an  interest  in  the  event  of  an  action  or  proceeding  are  excluded; 
nor  those  who  have  been  convicted  of  crime;  nor  persons  on  ac- 
count of  their  opinions  on  matters  of  religious  belief;  although  in 
every  case  the  credibility  of  the  witness  may  be  drawn  in  ques- 

275 


276  LAW    OF    EVIDENCE    IN    CRIMINAL    CASES. 

tion.  as  provided  in  Cal.  Code  Civ.  Proc.  1879,  §  1847;  N.  Y. 
Penal  Code,  §  714. 

In  People  v.  McGui/re,  45  Cal.  57,  the  broad  principle  was 
affirmed  by  an  undivided  court,  "that  no  witness  can  be  excluded 
in  any  case  on  account  of  nationality  or  color,"  and  one  who  has 
been  convicted  of  felony  may  testify.  People  v.  McLane,  60 
Cal.  112.  And  the  presumption  is  that  all  witnesses  are  both 
competent  and  credible,  but,  if  the  contrary  should  be  claimed  it 
is  exclusively  the  province  of  the  court  to  determine  the  validity 
of  the  objection.  State  v.  Lattin,  29  Conn.  389;  Peterson  v. 
.  17  Ga.  521;  State  v.  Scanlan,  58  Mo.  201;  State  v.  Whit- 
tier,  21  .Me.  311,  3S  xVm.  Dec.  272;  Com.  v.  Burke,  16  Gray,  33; 
State  v.  Levy,  5  La.  Ann.  61;  Brown  v.  State,  21  Ark.  620;  State 
v.  Holloway,  8  Blackf.  15. 

Under  rhe.se  liberal  enactments  the  judge  may  be  a  witness. 
And  it  is  said  that  he  may  be  so,  even  although  he  is  the  judge 
to  try  the  cause.  A  juror,  however,  may  be  a  witness,  either  for 
or  against  the  prisoner  and  must  be  sworn  as  such,  but  it  is  right 
that  he  should  inform  the  court  of  his  having  evidence  to  give  in 
the  case,  before  he  is  sworn  as  juror,  and,  indeed,  to  decline  act- 
ing as  a  juror  in  the  case,  if  the  court  will  permit  him.  Archb. 
Crim.  Pr.  &  PI.  p.  150. 

A  marginal  note  to  the  above  paragraph  in  Pomeroy's  edition 
of  the  well  known  work  above  cited,  says  :  "A  juror  may  give 
evidence  of  any  fact  material  to  be  communicated  in  the  cause  of 
a  trial.  In  a  criminal  prosecution,  the  jury  may  use  that  general 
knowledge  which  any  man  may  bring  to  the  subject-matter  of 
the  indictment,  without  being  sworn.  But,  if  any  one  of  the  ju- 
rors has  a  particular  knowledge  on  the  subject — as  for  instance, 
as  to  the  value  of  a  watch  in  a  case  where  it  is  essential  to  prove 
what  it  is  worth — he  ought  to  be  sworn  and  examined  as  a  wit- 
ness. Rexv.  Rosser,  7  Car.  &  P.  618;  McKain  v.  Love:  2  Hill, 
L.  506,  27  Am.  Dec.  101. 

"A  juror  may  be  admitted  to  prove  improper  attempts  by  a  party 
to  influence  the  minds  of  a  jury.  Denn  v.  Driver,  1  ~N.  J.  L. 
166.  So,  also,  to  show  the  misconduct  of  his  fellow  jurors,  in  or- 
der to  impeach  their  verdict.     State  v.  Free?nan,  5  Conn.   318." 

A  delicate  question  arises,  where,  in  the  furtherance  of  justice 

;omes  necessary  for  the  defendant  to  produce,  as  a  witness, 

the  presiding  judge.     Such  cases  are  rare,  but  by  no  means  im- 


COMPETENCY    AND    CREDIBILITY    OF    WITNESSES.  'll~ 

possible.  A  decision  of  the  New  York  supreme  court  in 
1854  is  instructive.  In  the  course  of  the  trial,  the  defend- 
ant offered  as  a  witness  in  his  behalf  the  Hon.  Harvey  Hum- 
phrey, county  judge  of  Monroe  county.  It  was  objected  on  the 
parr  of  the  prosecution  that  Judge  Humphrey,  being  a  member 
of  the  court,  could  not  be  sworn  as  a  witness.  The  objection  was 
sustained,  and  the  defendant  excepted.  Judge  Welles  in  writing 
the  opinion  of  the  court,  says:  "We  think  this  decision  was  cor- 
rect. The  court  could  not  be  held  without  the  county  judge, 
and  it  would  have  broken  up  the  court  for  the  time  being  for 
him  to  take  his  stand  as  ;t  witness.  He  could  not  act  in  the 
double  capacity  at  one  and  the  same  time  of  judge  and  witness. 
To  make  this  apparent,  it  is  only  necessary  to  suppose  a  claim  of 
privilege  by  the  witness  in  regard  to  answering  a  question  put  to 
him,  or  his  refusal  to  answer  a  question  which  his  associates  of 
the  court  decide  he  is  bound  to  answer,  with  a  motion  for  his 
commitment,  as  being  in  contempt,  until  he  should  answer,  or  of 
evidence  introduced  to  contradict  or  impeach  him.  Such  things 
are  possible  in  the  nature  of  the  case."  PtopU  v.  Miller ;  2  Park. 
Crim.  Rep.  197. 

"The  prosecuting  attorney  is  not  bound  by  any  oath  of  secrecy; 
and  certainly  we  know  of  no  sufficient  reason  why  he  may  not  be 
called  upon,  in  a  court  of  justice,  to  disclose  any  evidence  given, 
or  proceedings  had,  before  the  grand  jury,  of  which  he  may  have 
personal  cognizance.  It  is  said  that  it  is  contrary  to  public  pol- 
icy to  allow  the  defendant  in  a  criminal  case  to  call  upon  the 
prosecuting  attorney  as  a  witness  in  a  court  of  justice,  to  disclose 
any  evidence  given,  or  proceedings  had,  before  the  grand  jury. 
We  fail  to  see  the  matter  in  that  light.  In  our  opinion,  public 
policv  does  not  require  that  any  citizen  should  be  convicted  of  a 
public  offense  by  means  of  doubtful  evidence.  Where  the  prin- 
cipal witness  for  the  state  has  made  statements  under  oath  before 
the  grand  jury  in  regard  to  the  transaction  upon  which  the  crim- 
inal charge  is  predicated,  which  statements  cannot  be  reconciled 
with  the  evidence  of  the  witness  on  the  trial,  and  this  is  person- 
ally known  to  the  prosecuting  attorney,  it  seems  t<>  us  that  nei- 
ther his  official  duty  nor  public  policy  would  require  that  he 
should  withhold  his  evidence  of  the  tact  when  called  upon  by  the 
defendant  to  testify  as  to  the  fact,  and  seek  a  conviction  of  the 
defendant  upon  evidence  which,  from  the  facts  within  his  per- 
sonal knowledge,  he  had  reason  to  believe  was  at  least  doubtful." 
Burdick  v.  Hunt,  43  End.  381. 


276  LAW    OF    EVIDENCE    IN    CRIMINAL   CASES. 

§  107.  General  Abrogation  of  Former  Disqualifying 
Laws. — Express  legislation  in  many  states  has  wholly  abrogated 
former  rules  of  disqualification  by  reason  of  crime,  and  a  party 
may  now  show  the  record  of  conviction  not  because  it  renders  the 
witness  incompetent  but  merely  for  the  purpose  of  impairing  the 
credibility.  For  authorities  sustaining  this  proposition,  see  gen- 
eral statutes  of  all  the  states. 

§  19S.  New  York  and  California  Rules  Relating  to  the  Sub- 
ject.— "A  person  heretofore  or  hereafter  convicted  of  any  crime 
is,  notwithstanding,  a  competent  witness,  in  any  cause  or  proceed- 
ing, civil  or  criminal,  but  the  conviction  may  be  proved  for  the 
purpose  of  affecting  the  weight  of  his  testimony,  either  by  the 
record,  or  by  his  cross-examination,  upon  which  he  must  answer 
any  proper  question  relevant  to  that  inquiry;  and  the  party  cross- 
examining  is  not  concluded  by  the  answer  to  such  question." 
K  Y.  Penal  Code,  §  714. 

"This  section  abolishes  a  relic  of  the  old  rules  disqualifying 
witnesses,  M'hich  is  contrary  to  the  spirit  of  modern  legislation 
upon  the  subject  in  this  state,  and  has  been  abolished  in  England 
for  fully  a  third  of  a  century.  The  settled  theory  in  regard  to 
the  competency  of  the  witnesses  now  is,  that  the  court  or  jury 
shall  have  all  possible  light  thrown  upon  the  facts,  and  judge  for 
itself  what  credence  to  give  to  the  evidence  offered.  The  exclu- 
sion of  felons  as  witnesses  has  been  justified  by  the  argument  (1) 
that  their  testimony  is  unreliable  and  unsafe,  and  (2)  that  it  is  a 
proper  punishment  for  their  crimes.  Upon  neither  theory  can  it 
be  justified."     Per  Throop,  N.  T.  Code  Commissioner. 

"The  following  persons  cannot  be  witnesses: 

"1.  Those  who  are  of  unsound  mind  at  the  time  of  their  produc- 
tion for  examination. 

"2.  Children  under  ten  years  of  age,  who  appear  incapable  of 
receiving  just  impressions  of  the  facts  respecting  which  they  are 
examined,  or  of  relating  them  truly. 

"3.  Parties  or  assignors  of  parties  to  an  action  or  proceeding,  or 
persons  in  whose  behalf  an  action  or  proceeding  is  prosecuted, 
against  an  executor  or  administrator  upon  a  claim  or  demand 
against  the  estate  of  a  deceased  person,  as  to  any  matter  of  fact 
occurring  before  the  death  of  such  deceased  person."  Amend- 
ment, approved  April  16,  18S0;  Cal.  Code  Civ.  Proc.  §  1880. 

The  California  Code  of  Civil  Procedure  embodies  the  best  feat- 


COMPETENCY    AND    CKEDIBILITY    OF    WITNESSES.  279 

■ares  of  modern  legislation  on  this  topic  of  competency.  Section 
1879  of  that  act  crystalizes  the  juridical  sentiment  upon  the  sub- 
ject, and  it  ma}'  be  quoted  as  typical  of  the  law  as  at  present 
understood  by  the  judiciary  of  the  United  States. 

The  following  is  the  context  of  the  section  referred  to: 
"All  persons,  with  exception,  who,  having  organs  of  sense,  can 
perceive,  and  perceiving,  can  make  known  their  perceptions  to 
others,  may  be  witnesses.  Therefore,  neither  parties  nor  other 
persons  who  have  an  interest  in  the  event  of  an  action  or  proceed- 
ing are  excluded;  nor  those  who  have  been  convicted  of  crime; 
nor  persons  on  account  of  their  opinions  on  matters  of  religious 
belief;  although  in  every  case  the  credibility  of  the  witness  may 
be  drawn  in  question,  as  provided-  in  Cal.  Code  Civ.  Proc.  1879, 
§  1847." 

§  199.  Theory  of  Chief  Justice  Appleton.— The  Hon.  John 
Appleton,  for  many  years  chief  justice  of  the  state  of  Maine,  in 
the  preface  to  his  valuable  work  on  "The  Rules  of  Evidence," 
states  the  result  of  his  research  and  experience  to  be:  "1.  All 
persons  without  exception,  who  having  any  of  the  organs  of  sense, 
can  perceive,  and  perceiving  can  make  known  their  perceptions 
to  others,  should  be  received  and  examined  as  witnesses.  2.  That 
objections  may  be  made  to  the  credit  but  never  to  the  competen- 
cy of  witnesses.  3.  That  while  the  best  evidence  should  always 
be  required,  the  best  existing  evidence  should  not  be  excluded 
because  it  is  not  the  best  evidence  of  which  the  case  in  its  nature 
is  susceptible."  The  learned  author  goes  on  to  say  that  many  of 
the  reforms  pointed  out  in  his  essay  have  been  partially  adopted. 
Interest  and  infamy,  in  very  many  states,  have  ceased  to  be 
ground  for  the  exclusion  of  testimony.  A  limited  admission  of 
the  testimony  of  the  husband  and  wife  has  been  allowed  in  cases 
where  one  or  the  other,  is  a  party.  The  parties  in  civil  cases,  with 
greater  or  less  restrictions  upon  their  testimony,  have  been 
received  or  compelled  to  testify  in  their  own  cases.  In  offenses 
of  the  lowest  grade  of  criminality  the  accused  in  one  state  (and 
since  then  in  others)  has  been  admitted  as  a  witness  in  his  own 
behalf.  But  incompetency  from  defect  or  from  a  want  of  religious 
belief,  is  still  the  law  in  most  of  the  states.  The  law  as  to  con- 
fessions and  hearsay  continues  in  a  chaotic  condition.  Different 
courts  and  the  same  court  on  different  occasions,  employ  differing 
modes  of  extracting  proofs.     So  far  as  changes  have  been  made, 


280  LAW    OF    EVIDENCE    IN    CRIMINAL    CASES. 

their  practical  working  in  the  administration  of  the  law  has  been 
such  as  to  make  it  a  matter  of  astonishment  how  courts  could  have 
ever  hoped  to  administer  justice,  when  the  evidence  now  received 
was  excluded. 

As  to  whether  a  record  of  conviction  of  a  witness  for  a  felony, 
where  it  does  not  disqualify,  is  evidence  in  a  civil  action  for  the 
purpose  of  impeachment,  qucere. 

In  the  case  of  People  v.  Noyes,  tried  at  the  Livingston  circuit 
in  November,  L876,  it  was  held,  that  a  person  convicted  of  felony 
in  the  state  of  Michigan,  was  nut  thereby  rendered  incompetent 
to  testify,  but  that  the  fact  of  the  conviction  went  only  to  his 
credibility.  To  the  same  effect  is  the  case  of  the  Com.  v.  Green, 
17  Mass.  515,  where  the  question  received  great  consideration,. 
and  an  able  opinion  was  written  by  Parker,  Ch.  J.,  which  was  con- 
curred in  by  the  whole  court. 

It  was  decided  in  the  case  of  Carpenter  v.  Nixon,  5  Hill,  260,, 
that  the  record  of  the  conviction  of  a  witness  of  petit  larceny, 
was  admissible  fur  the  purpose  of  affecting  the  credit  of  such  wit- 
ness,  and  that  the  refusal  to  receive  it  for  that  purpose  was  error. 

In  lYt  wcorrib  v.  Griswold,  24:  X.  Y.  29S,  the  competency  of 
such  evidence  for  that  purpose  is  admitted,  but  it  is  held  that  the 
fact  of  the  conviction  cannot  be  proved  by  parol,  even  by  the 
witness  himself  upon  cross-examination,  but  must  be  established 
by  the  general  rule  laid  down  in  all  the  elementary  works  upon 
evidence,  that  particular  facts  cannot  be  proved  to  effect  the  credit 
of  a  witness,  but  that  the  examination  must  be  confined  to  his 
general  reputation. 

The  entire  discussi<  »n  is  of  trifling  importance  in  view  of  the  very 
general  abrogation  of  the  old  exclusionary  rules  which  denied  to 
convicts  the  privilege  of  a  witness.  This  disqualification  has  been 
removed  in  all  of  the  New  England  states,  in  California,  Colorado, 
.Delaware.  Georgia,  Illinois.  Indiana,  Iowa,  Kansas.  Michigan, 
Minnesota,  Missouri,  New  Jersey,  New  York,  North  Carolina. 
Vermont,  Virginia,  Washington  and  Wisconsin.  A  lingering  sur- 
vival of  the  rule  is  found  in  some  of  the  southern  states,  notably. 
Florida,  Mississippi  and  South  Carolina. 

.  200.  Exceptions  to  the  General  Rule. 

a.  Husband  and  Wife. — There  are  particular  relations  in  which 
it  is  tiie  policy  of  the  law  to  encourage  confidence,  and  to  preserve 


COMPETENCY    AND    CREDIBILITY    OF    WITNESSES.  281 

it  inviolate;  therefore  a  person  cannot  be  examined  as  a  witness  in 
the  following  cases: — 

A  husband  shall  not  be  examined  for  or  against  his  wife  with- 
out her  consent,  nor  a  wife  for  or  against  her  husband  without  his 
consent;  nor  can  either,  during  the  marriage  afterwards,  with- 
out the  consent  of  the  other,  be  examined  as  to  any  communication 
made  by  one  to  the  other  during  the  marriage.  But  the  excep- 
tion does  not  apply  to  a  civil  action,  suit,  or  proceeding,  by  one 
against  the  other,  nor  to  a  criminal  action  or  proceeding  for  a 
crime  committed  by  one  against  the  other; 

An  attorney  shall  not.  without  the  consent  of  his  client,  be 
examined  as  to  any  communication  made  by  the  client  to  him.  or 
his  advice  given  thereon,  in  the  course  of  professional  employ- 
ment; 

A  priest  or  clergyman  shall  not.  without  the  consent  of  the  per- 
son making  the  confession,  be  examined  as  to  any  confession  made 
to  him  in  his  professional  character,  in  the  course  of  discipline, 
enjoined  by  the  church  to  which  he  belongs; 

A  public  officer  shall  not  be  examined  as  to  communications 
made  t<i  him  in  official  confidence,  when  the  public  interest  would 
suffer  by  the  disclosure.  Lucas  v.  State,  23  Conn.  18;  William 
v.  State,  53  Ga.  (Supp.)  85;  Byrd  v.  State,  57  Miss.  243,  34  Am. 
Rep.  440;  Downing  v.  Rugar,  21  Wend.  178,  34  Am.  Dec.  223; 
Wilke  v.  People,  53  K  Y.  525;  Peoplt  v.  Briggs,  60  How.  Pr. 
17;  People  v.  Moore,  65  How.  Pr.  177;  People  v.  Crandon,  17 
Hun,  490;  Taulman  v.  State,  37  Ind.  353:  HubbeU  v.  Grant,  39 
Mich.  041;  State  v.  Houston,  50  Iowa,  512;  Iowa  Code,  jj  3641; 
DUl  v.  State,  1  Tex.  App.278;  State  v.  Douglass,  20  W.  Ya.  770. 
As  to  when  he  can  testify  for  his  client,  see  Chappt  II  v.  Sm  ith,  17 
Ga.  08;  Foster  v.  Hall,  12  Pick.  89,  22  Am.  Dec.  400;  Hatton  v. 
Robinson,  14  Pick.  410.  421:  Landsberger  v.  Gorham,  5  Cal.  450; 
Gower  v.  Eme?-y,  18  Me.  82;  Satterlee  v.  Bliss,  36  Cal.  507; 
Toomes  Estate,  54  Cal.  509;  3  Rev.  Stat.  (6th  ed.)  671,  §  L19; 
Code  Civ.  Proc.  §§  834,  836;  Edington  v.  Mutual  L.  ///.v.  Co.  67 
N.  Y.  L85;  Cahen  v.  <  Continental L.  Ins.  <  'o.  69  X.  V.  308;  Grattan 
v.  National  L.  Ins.  Co.  15  Hun,  77;  Hildreth  v.  Shepard,  65 
Barb.  265;  Wolstenholnu  v.Wolstenholme  Fil<  Mfg.  Co.  3  bans. 
467. 

It  is  admitted  in  all  the  cases  that  tin-  wife  is  not  competent, 
except  in  prosecution  for  an  offense  against  her,  directly  to  crimi- 


2S2  LAW    OF   EVIDENCE    IN    CRIMINAL   CASES. 

nate  her  husband  or  to  disclose  that  which  she  has  heard  from  him 
in  their  confidential  intercourse.  The  rule  which  protects  an  attor- 
ney in  such  a  case,  is  founded  upon  public  policy,  and  may  be 
essential  to  the  administration  of  justice.  But  this  privilege  is 
the  privilege  of  the  client  and  not  of  the  attorney.  The  rule 
which  protects  the  domestic  relations  from  exposure,  rests  upon 
considerations  connected  with  the  peace  of  families.  And  it  is 
conceived  that  this  principle  does  not  merely  afford  protection  to 
the  husband  and  wife,  which  they  are  at  liberty  to  invoke  or  not, 
at  their  discretion,  when  the  question  is  propounded,  but  it  ren- 
ders them  incompetent  to  disclose  facts  in  evidence  in  violation 
of  the  rule.  And  it  is  well  that  the  principle  does  not  rest  on  the 
discretion  of  the  parties.  If  it  did,  in  most  instances  it  would 
afford  no  substantial  protection  to  persons  uninstructed  in  their 
rights,  ami  thrown  off  their  guard  and  embarrassed  by  searching 
interrogatories. 

As  authority  for  the  foregoing  text  and  as  illustrating  the  prin- 
ciple there  stated  Ave  append  the  statutory  law  of  several  states 
with  some  pertinent  judicial  comment. 

The  Iowa  Code  provides  as  follows: 

"§  3641.  The  husband  nor  wife  shall  in  no  case  he  a  witness  for 
i  tr  against  the  other,  except  in  a  criminal  proceeding  for  a  crime 
•committed  by  one  against  the  other,  or  in  a  civil  action  or  pro- 
ceeding one  against  the  other,  but  they  may  in  all  civil  or  crimi- 
nal cases,  be  witnesses  for  each  other." 

Commenting  upon  this  statute  in  State  v.  Houston,  50  Iowa, 
512,  the  court  said  :  "Amelia  M.  Houston,  wife  of  the  defend- 
ant, was  examined  and  testified  before  the  grand  jury.  It  is  in- 
sisted by  the  defendant  that  that  fact  rendered  the  indictment 
void,  and  that  the  verdict  cannot  be  allowed  to  stand.  The  wife 
cannot  be  a  witness  against  her  husband  except  in  a  criminal 
pn  »secution  for  a  crime  committed  against  her,  and  in  a  civil  action 
brought  by  one  against  the  other,  but  she  may  be  a  witness  for  him 
in  all  cases.  Iowa  Code,  §  3641.  When  the  grand  jury  have 
reason  to  believe  that  evidence  within  its  reach  will  explain  away 
the  charge,  it  may  order  such  evidence  to  be  provided.  Iowa 
Code,  §  4276. 

"A  witness,  then,  called  before  the  grand  jury  is  not  necessarily 
called  against  the  defendant.  It  might  be  the  defendant's  privi- 
lege that  his  wife  should  be  called. 


COMPETENCY    AND    CREDIBILITY    OF   WITNESSES.  283 

"If,  however,  where  a  defendant's  wife  is  called,  and  the  facts 
of  which  she  has  knowledge  are  unfavorable  to  the  husband,  it 
"would  be  proper  for  her  to  object  to  testifying,  and  we  think  she 
-could  not  be  compelled  to  testify  against  her  objection.  If  she 
testified,  and  her  testimony  was  unfavorable  to  her  husband,  so 
that  it  appeared  that  the  indictment  was  found,  in  whole,  or  in 
part,  upon  her  testimony,  possibly  the  indictment  might  .be 
quashed  upon  that  ground.  But  the  defendant  should  judge 
whether  her  testimony  was  favorable  or  unfavorable  before  pro- 
ceeding to  trial,  and  moved  to  cniash  if  he  thought  there  was 
ground  for  it.  We  think  it  too  late  to  raise  an  objection  of  this 
kind  after  conviction." 

The  Texas  Code  provides  that  "the  husband  and  wife  may  in 
all  criminal  actions  be  witnesses  for  each  other,  but  they  shall  in 
no  case  testify  against  each  other  except  in  a  criminal  prosecu- 
tion for  an  offense  by  one  against  the  other."  Tex.  Code  Crim. 
Proc.  art.  735.  In  construing  this  statute  with  reference  to  the 
extent  to  which  the  right  of  cross-examination  may  be  carried  by 
the  state  where  one  spouse  has  been  called  to  testify  for  the  other, 
it  is  said  that  "whilst  it  is  true  the  spouse  is  subject  to  cross-ex- 
amination like  any  other  witness  it  is  also  true  that  such  cross- 
examination  must  be  confined  strictly  to  the  matters  about  which 
she  has  testified  on  the  examination  in  chief."  Washington  v. 
State.  17  Tex.  App.  197,  citing  Creamer  v.  State,  31  Tex.  171. 
•and  Greenwood  v.  State,  35  Tex.  5S7;  Johnson  v.  State,  28  Tex. 
App.  17. 

In  Illinois  the  statute  directs  that  no  husband  or  wife  shall  be 
rendered  competent  to  testify  for  or  against  each  other  as  to  any 
transaction  or  conversation  occurring  during  the  marriage,  whether 
•called  as  a  witness  during  the  existence  of  the  marriage,  or  after 
its  dissolution,  except  in  cases  where  the  wife  would,  if  unmar- 
ried, be  plaintiff  or  defendant,  or  where  the  cause  of  action 
grows  out  of  a  personal  wrong  or  injury  clone  by  one  to  the  other, 
or  grows  out  of  the  neglect  of  the  husband  to  furnish  the  wife 
with  a  suitable  support;  and,  except  in  easts  where  the  litigation 
shall  be  concerning  the  separate  property  of  the  wife  and  suits 
for  divorce,  and  except  also  in  actions  upon  policies  of  insurance 
or  property,  so  far  as  relates  to  the  amount  and  value  of  the 
property  alleged  to  be  injured  or  destroyed,  or  in  actions  against 
-carriers,  so  far  as  relates  to  the  loss  of  property  and  the  amount 


284  LAW    OF    EVIDENCE    IN    CRIMINAL    CASES. 

and  value  thereof,  or  in  all  matters  of  business  transactions  where 
the  transaction  was  had  and  conducted  by  such  married  woman 
as  the  agent  of  her  husband,  in  all  of  which  cases  the  husband 
and  wife  may  testify  for  or  against  each  other,  in  the  same  man- 
ner as  other  parties  may,  under  the  provisions  of  this  act:  Pro- 
vided, that  nothing  in  this  section  contained  shall  be  construed  tO' 
authorize  or  permit  any  such  husband  or  wife  to  testify  to  any 
admissions  or  conversations  of  the  other,  whether  made  by  him 
to  her  or  by  her  to  him,  or  by  either  to  third  persons,  except  in 
suits  or  causes  between  such  husband  and  wife."  111.  Rev.  Stat. 
489,  §  5. 

In  Oregon  the  element  of  mutual  consent  appears :  "In  all 
criminal  actions,  where  the  husband  is  the  party  accused,  the  wife 
shall  be  a  competent  witness;  but  neither  husband  nor  wife,  in 
such  cases,  shall  be  compelled  or  allowed  to  testify  in  such  case 
unless  by  consent  of  both  of  them,  provided,  that  in  all  cases  of 
personal  violence  upon  either  by  the  other,  the  injured  party 
husband  or  wife,  shall  be  allowed  to  testify  against  the  other." 
Hill,  Ann.  Law  of  Oregon,  §  1366. 

The  phrasing  of  the  New  York  statute  is  peculiar:  "The  hus- 
band or  wife  of  a  person  indicted  'or  accused  of  a  crime  is  in  all 
cases  a  competent  witness,  on  the  examination  or  trial  of  such 
person;  but  neither  husband  nor  wife  can  be  compelled  to  dis- 
close a  confidential  communication,  made  by  one  to  the  other 
during  their  marriage."  jS\  Y.  Penal  Code,  §  715.  In  exposi- 
tion of  this  provision  is  the  case  of  People  v.  ITovey,  29  Hun, 
382,  a  homicide  of  peculiar  atrocity,  and  which  was  defended  by 
one  of  the  most  eminent  lawyers  known  to  the  criminal  bar. 
The  general  term  of  the  supreme  court  said:  "It  is  urged  on  be- 
half of  the  appellant  that  the  presumption  must  be  that  his  wife 
was  hostile  to  him,  and  that  he  was  not,  therefore,  obliged  to  use 
her  as  a  witness  or  to  be  subjected  to  any  criticism  because  he  did 
not  call  her.  This  view  is  fallacious.  The  presumption  is  that 
she  would  tell  the  truth,  and  the  appellant  must  take  the  conse- 
quences  of  such  presumption." 

A.-  late  as  1884,  the  New  York  supreme  court  says:  "The 
examination  of  the  wife  of  the  defendant  as  a  witness  against  her 
husband  Mas  not  error.  She  was  not  compelled  to  disclose  any 
confidential  communication  passing  between  herself  and  her  hus- 
band during  their  marriage,  and  within  that  limitation  she  was  a 


COMPETENCY    AND    CKED1BILITY    OF    WITNESSES.  285 

competent  witness."  X.  Y.  Penal  Code,  §  715.  The  case  of 
People  v.  Hoc: ip  20  Hun,  382,  1  K  Y.  Oim.  Rep.  ISO,  arose 
before  the  penal  code  took  effect.  People  v.  Petmech/,  2  1ST.  Y. 
Crim.  Rep.  450. 

The  question  as  to  how  far  the  testimony  of  a  husband,  which 
may  tend  to  criminate  his  wife,  or  the  testimony  of  a  wife  which 
may  tend  to  criminate  her  husband,  is  admissible  in  a  collateral 
proceeding,  is  not  satisfactorily  settled  by  precedent.  In  the  case 
of  Rex  v.  GUviger,  2  T.  R.  203,  it  was  thought  that  such  testi- 
mony was  inadmissible  from  reasons  of  public  policy,  to  avoid 
dissensions  between  husband  and  wife.  This  was  a  case  of  settle- 
ment, where  a  marriage  in  fact  had  been  proved,  and,  the  husband 
having  given  testimony  denying  a  previous  marriage,  it  was  held 
that  the  first  wife  could  not  be  called  to  prove  the  same,  as  it 
would  tend  to  criminate  him  in  respect  of  two  crimes, — -bigamy  and 
perjury.  But  in  two  cases  subsequently  decided,  where  the  ques- 
tion was  the  same,  except  that  the  husband  had  not  given  testimony 
denying  his  previous  marriage,  it  was  held  that  the  first  wife  was  a 
competent  witness  to  prove  such  marriage.  Rex  v.  All  Saints, 
0  Maule  &  S.  194;  Rex  v.  Bailiwick,  2  Barn.  A:  Ad.  639.  In  these 
two  cases  the  rule  declared  in  Rex  v.  Cliviger  may  be  regarded 
as  having  been  qualified,  at  least,  so  far  as  to  recognize  the  com- 
petency of  husband  and  wife  as  witnesses  in  collateral  cases,  where 
the  testimony  of  the  one  of  them  who  is  called  as  a  witness  can 
criminate  the  other  only  when  connected  with  other  evidence. 

In  the  case  of  State  v.  Dudley,  7  Wis.  664,  on  the  trial  of  an 
indictment  for  adultery  committed  by  the  defendant  with  the 
wife  of  a  man  who  had  subsequently  procured  a  divorce,  it  was 
held  that  the  divorced  husband  was  a  competent  witness  to  prove 
his  marriage  with  his  divorced  wife.  In  State  v.  Marvin,  35  N. 
II.  22,  on  a  similar  indictment,  the  husband  testified  without 
objection  to  the  marriage  and  to  the  fact  of  the  adultery;  but, 
being  asked  if  he  lived  with  his  wife  at  the  time  of  the  trial, 
answered  that  he  did  not.  To  this  last  statement  the  defendant 
objected,  but  the  objection  was  overruled,  and  it  was  held,  on  a 
motion  to  set  aside  the  verdict,  to   have   been  properly  admitted. 

We  find  no  American  decision,  with  the  exception  of  the  two 
above  stated  (if  they  can  be  deemed  an  exception)  which  sanc- 
tions the  unqualified  admissibility  of  such  testimony  in  a  collateral 
proceeding.     It  has  been  held  in  four  different  states,  that,  on  the 


286  LAW    OF    EVIDENCE    IN    CRIMINAL    CASES. 

trial  of  an  indictment  against  a  man  for  adultery,  the  husband  of 
the  woman  with  whom  the  crime  is  alleged  to  have  been  commit- 
ted, is  not  a  competent  witness  to  prove  the  fact.  State  v.  Gard- 
ner, 1  Koot,  4S5;  State  v.  Welch,  26  Me.  30,  45  Am.  Dec.  94;. 
State  v.  Wilson,  31  K  J.  L.  77;  Com.  v.  Sparks,  7  Allen,  534. 
In  the  last  named  case  Merrick,  J.,  in  delivering  the  opinion  of 
the  court  said:  "It  has  never  been  determined  that  a  husband  or 
wife  is  admissible  as  a  witness  in  any  collateral  proceeding,  to  tes- 
tify directly  to  the  commission  of  any  criminal  act  of  the  other. 
Nor  ought  such  testimony  to  be  received  in  any  proceeding  or 
upon  any  trial;  for,  as  nothing  would  be  more  likely  to  exasperate 
the  parties  and  be  the  means  of  implacable  discord  and  dissension 
between  them,  its  admission  would  be  a  violation  of  that  principle 
of  public  policy  upon  which  the  general  rule  of  their  exclusion  as 
witnesses  against  the  other  is  founded." 

Let  it  be  remembered  that  it  is  only  where  there  has  been  a 
valid  marriage  that  the  parties  are  excluded  from  giving  evidence 
for  or  against  each  other  by  the  common  law.  Roscoe,  Crim.  Ev„ 
124;  1  Greenl.  Ev.  §  339;  Whart.  Crim.  Ev.  §  390.  It  has  there- 
fore been  held  in  indictments  for  bigamy,  after  proof  of  the  first 
marriage,  that  the  second  woman  married  is  a  competent  witness 
against  her  husband,  for  the  second  marriage  is  void  and  she  is  no- 
wife.  To  test  this  competency  the  woman  may  be  examined  on 
the  voir  dire  as  to  this  void  marriage.  Whart.  Crim.  Ev.  §§  395- 
397;  1  East,  P.  C.  469;  Seeley  v.  Engell,  13  K  Y.  542;  State  v. 
Gordon,  46  K  J.  L.  432. 

b.  Exception  Arising  from  Lunacy  and  Intoxication. — In 
District  of  Columbia  v.  Armes,  107  U.  S.  519,  27  L.  ed.  613, 
Mr.  Jtistice  Field  formulates  the  rule  on  this  branch  of  our  subject 
as  follows: 

"It  is  undoubtedly  true  that  a  lunatic  or  insane  person  may, 
from  the  condition  of  his  mind,  not  be  a  competent  witness.  His 
incompetency  on  that  ground,  like  incompetency  from  any  other 
cause,  must  be  passed  upon  by  the  court,  and  to  aid  its  judgment, 
evidence  of  his  condition  is  admissible.  But  lunacy  or  insanity 
assumes  so  many  forms  and  is  so  often  partial  in  its  extent,  being 
frequently  confined  to  particular  subjects,  whilst  there  is  full 
intelligence  on  others,  that  the  power  of  the  court  is  to  be  exer- 
cised  with  the  greatest  caution.  The  books  are  full  of  cases- 
where  persons  showing  mental  derangement  on  some  subjects  evi- 


COMPETENCY    AND    CREDIBILITY    OF   WITNESSES.  28T 

dence  a  high  degree  of  intelligence  and  wisdom  on  others.  The 
existence  of  partial  insanity  does  not  unfit  individuals  so  affected 
for  the  transaction  of  business  on  all  subjects,  nor  from  giving  a. 
perfectly  accurate  and  lucid  statement  of  what  they  have  seen  or 
heard. 

"The  general  rule  therefore  is,  that  a  lunatic  or  person  affected 
with  insanity  is  admissible  as  a  witness  if  he  have  sufficient  under- 
standing to  apprehend  the  obligation  of  an  oath,  and  to  be  capa- 
ble of  giving  a  correct  account  of  the  matters  which  he  has  seen 
or  heard  in  reference  to  the  questions  at  issue;  and  whether  he 
have  that  understanding  is  a  question  to  be  determined  by  the 
court,  upon  examination  of  the  party  himself,  and  any  competent 
witnesses  who  can  speak  to  the  nature  and  extent  of  his  insanity. 
Such  was  the  decision  of  the  Court  of  Criminal  Appeal  in  England, 
in  the  case  of  Reg.  v.  Hill,  5  Cox,  C.  C.  259.  There  the  prisoner 
had  been  convicted  of  manslaughter;  and  on  the  trial  the  witness 
had  been  admitted  whose  incompetency  was  urged  on  the  ground 
of  alleged  insanity.  He  was  a  patient  in  a  lunatic  asylum,  under 
the  delusion  that  he  had  a  number  of  spirits  about  him  which 
were  continually  talking  to  him,  but  the  medical  superintendent 
testified  that  he  was  capable  of  giving  an  account  of  any  transac- 
tion that  happened  before  his  eyes;  that  he  had  always  found  him 
so,  and  that  it  was  solely  with  reference  to  the  delusion  about  the 
spirits  that  he  considered  him  a  lunatic." 

Peake  lays  down  this  proposition,  which  cannot  fail  to  com- 
mand general  assent:  "All  persons  who  are  examined  as  witnesses 
must  be  fully  possessed  of  their  understanding;  that  is,  such  an 
understanding  as  enables  them  to  retain  in  memory  the  events  of 
which  they  have  been  witnesses  and  gives  them  a  knowledge  of 
right  and  wrong;  that,  therefore,  idiots  and  lunatics,  while  under 
the  influence  of  their  malady,  not  possessing  this  share  of  under- 
standing, are  excluded."  p.  152.  This  principle  necessarily  ex- 
cludes persons  from  testifying  who  are  besotted  with  intoxication 
at  the  time  they  are  offered  as  witnesses;  for  it  is  a  temporary 
derangement  of  the  mind;  and  it  is  impossible  for  such  men  to 
have  such  a  memory  of  events,  of  which  they  may  have  had  a 
knowledge,  as  to  be  able  to  present  them  fairly  and  faithfully,  to 
those  who  are  to  decide  upon  contested  facts.  A  present  him  I  ex- 
isting intoxication,  to  a  considerable  degree,  utterly  disqualifies 
the  person  so  affected  to  narrate  facts  and  events  in  a  way  at  all 


26S  LAW    OF    EVIDENCE    IN    CRIMINAL    CASES. 

to  be  relied  on.  It  would,  we  think,  be  profaning  the  sancity  of 
•in  oath  to  tender  it  to  a  man  who  had  no  present  sense  of  the  ob- 
ligations it  imposed.     Hartford  v.  Palmer,  16  Johns.  143. 

In  a  late  case  in  Washington  territory,  it  is  held  that  the  ex- 
clusion of  an  intoxicated  witness  from  the  court  room  and  the 
refusal  of  the  court  to  permit  him  to  testify,  is  not  error;  but  it 
might  constitute  ground  for  a  new  trial  if  the  party  who  offered 
the  witness  informed  the  court  of  the  importance  of  his  testi- 
mony, and  asked  an  adjournment  of  the  trial  until  he  became 
competent  to  testify,  and  the  court  refused  the  request.  Fox  v. 
Territory,  2  Wash.  Ter.  297,  5  West  Coast  Rep.  339.  See  also 
Hartford  v.  Palmer,  16  Johns.  113;  Gould  v.  Crawford,  2  Pa. 
89;  Cannady  v.  Lynch,  27  Minn.  435. 

Where  the  degree  of  idiocy  or  lunacy  is  such  as  to  impair  the 
understanding,  cloud  the  memory,  thicken  the  speech  and  benumb 
the  faculties,  it  works  disqualification  of  the  witness,  and  under 
every  rule  of  propriety  the  person  so  situated  should  be  excluded 
from  the  stand.  Wherever  their  condition  is  such  that  they  do 
not  comprehend  the  nature  of  an  oath,  they  should  be  rejected. 
Livingston  v.  Kiersted,  10  Johns.  362;  Coleman  v.  Com.  25  Gratt. 
S65. 

An  insane  person  may  be  competent  to  testify  to  facts  not  re- 
lating to  himself  according  as  the  court  is  satisfied  with  the  degree 
of  his  understanding;  and  a  person  who  has  been  insane,  and  is 
apparently  recovered  may  testify  to  facts  occurring  during  the 
period  of  this  insanity,  provided,  that  in  both  mentioned  cases 
the  facts  testified  to  are  objectively  demonstrable,  and  constitute 
a  basis  from  which  to  begin  such  testimony.  A  personal  and  self- 
regarding  incident  occurring  during  a  period  of  insanity,  and  tes- 
tified to  by  its  subject  either  while  still  insane  or  when  recovered 
from  that  state,  is  not  per  se  an  evidential  fact,  and  its  probative 
force  rests  wholly  upon  corroborating  circumstances. 

These  conclusions  are  derived  from  principles  in  the  law  of  evi- 
dence, which  have  become  fixed  by  time  and  experience.  See 
Sarbach  v.  Joins.  20  Kan.  497;  Campbell  v.  State,  23  Ala.  44; 
i  <nh/  v.  Lynch,  27  Minn.  435. 

The  force  of  all  human  testimony  depends  as  much  upon  the 
ability  of  the  witness  to  observe  the  facts  correctly,  as  upon  his 
disposition  to  describe  them  honestly;  and  if  the  mind  of  the  wit- 
ness is  in  such  a  condition  that  it  cannot  accurately  observe  pass- 


COMPETENCY    AND    CREDIBILITY    OF    WITNESSES.  289 

ing  events,  and  if  erroneous  impressions  are  thereby  made  upon 
the  tablet  of  the  memory,  his  story  will  make  but  a  feeble  im- 
pression upon  the  hearer.  People  v.  New  York  Hospital,  3 
Abb.  K  C.  229.  See  Lewis  v.  Eagle  Ins.  Co.  10  Gray,  508; 
Coleman  v.  Com.  25  Gratt.  865;  Rivara  v.  Ghio,  3  E.  D.  Smith, 
264;  Bell  v.  Rimier,  16  Ohio  St.  45;  Holcomb  v.  Holcomb.  28 
Conn.  177. 

c.  Exception  as  to  Deaf  Mutes. — One  of  the  crowning 
glories  of  an  advanced  civilization  and  one  of  the  grandest  achieve- 
ments of  educational  methods  has  been  the  emancipation  of  deaf 
mutes  from  the  horrible  thraldom  imposed  by  that  forlorn  and 
pitiful  condition.  The  brutal  dictum  of  Lord  Hale,  that  persons 
-so  situated  are  to  be  deemed  the  same  as  idiots,  has  passed,  bike 
countless  other  provisions  of  the  common  law,  into  well  merited 
oblivion.  A  doctrine  so  repugnant  to  every  sentiment  of  benev- 
olence, and  so  utterly  at  variance  with  common  observation,  has 
very  properly  been  utterly  rejected  by  our  courts,  and  upon  suffi- 
cient understanding  being  shown,  a  deaf  mute  may  be  sworn  and 
give  his  testimony  through  an  interpreter.  Such  a  witness  is 
competent  in  Indiana,  if  he  has  sufficient  discretion  and  under- 
stands that  perjury  is  punishable  by  law,  though  he  has  no  con- 
ception of  the  moral  obligation  of  an  oath. 

If  he  can  write  sufficiently  well  to  communicate  ideas  perfectly 
in  that  way,  he  will  be  required  to  give  his  testimony  in  writing 
{Morrison  v.  Lennard,  3  Car.  &  P.  127)  but  he  may  resort  to 
signs,  though  it  appears  that  he  can  read  and  write  and  commu- 
nicate ideas  imperfectly,  by  writing.  State  v.  De  Wolf,  8  Conn. 
■S3,  20  Am.  Dec,  90;  Com.  v.  Hill,  14  Mass.  207;  People  v.  Mo- 
Gee,  1  Denio,  19;  Beg.  v.  Guttridges,  9  Car.  &  P.  471;  Reg.  v. 
Megson,  9  Car.  &  P.  418. 

d.  Exception  as  to  Infancy. — There  is  no  precise  age  at 
which  children  are  competent  or  incompetent.  The  question  of 
competency  is  not  to  be  determined  by  any  precise  age,  but  by 
apparent  capacity.  Brown  v.  State,  2  Tex.  App.  115;  State  v. 
Richie,  28  La.  Ann.  327,  26  Am.  Rep.  100;  Draper  v.  Draper, 
68  111.  17;  Flanagan  v.  State,  25  Ark.  92.  Children  of  seven, 
eight  and  nine  years  of  age  are  frequently  sworn,  and  there  is  so 
wide  a  difference  in  the  capacity  of  children  that  many  of  them 
are  more  intelligent  at  nine  years  of  age  than  others  are  at  ten  or 
twelve.     Children  of  fourteen  are  presumed  to  be  competent,  and 

19 


290  LAW    OF    EVIDENCE    IN    CRIMINAL   CASES. 

those  who  are  younger  than  that  will  be  sworn  if  they  are  really 
competent.  Investigation,  however,  may  disclose  a  sufficient  un- 
derstanding. Davidson  v.  State,  39  Tex.  129.  And  where  a. 
child  eight  years  of  age  testified  that  she  did  not  know  what  the 
Bible  was,  but  believed  that  she  must  tell  the  truth  on  the  stand, 
or  be  punished  hereafter,  she  was  permitted  to  testify.  Com.  v. 
Carey,  2  Brewst.  404,  and  see  Vincent  v.  State,  3  Heisk.  120; 
Logston  v.  State,  3  Heisk.  414. 

When  a  child  is  intelligent,  the  court  will  permit  him  to  be 
sworn  as  a  witness,  leaving  the  value  of  his  evidence  to  the  jury. 
When  a  child  under  fourteen  years  of  age  is  offered  as  a  witness, 
the  justice  should  examine  him,  so  as  to  ascertain  if  he  is  compe- 
tent, provided  such  a  request  is  made  by  the  opposite  party. 
People  v.  McNair,  21  Wend.  G08.  If  the  child  is  naturally 
intelligent,  but  does  not  fully  understand  the  nature  of  an  oath, 
the  justice  may  instruct  him,  by  informing  him  of  the  moral  ob- 
ligations and  of  the  legal  consequences  of  false  swearing.  This 
may  be  done  at  the  trial  before  swearing  the  witness.  !N".  Y. 
Code  Civ.Proc.  §  S50. 

If  the  court  examines  a  child  to  test  its  competency  as  a  wit- 
ness and  finds  it  incompetent,  it  must  be  a  flagrant  case  of  error 
to  authorize  an  appellate  court  to  reverse  the  judgment.  Peter- 
son v.  State,  47  Ga.  524. 

When  a  witness  is  objected  to,  on  the  ground  that  he  or  she  is 
incompetent  by  reason  of  nonage  or  want  of  intelligence,  it  is  the 
province  of  the  trial  court  to  determine  the  witnesses's  compe- 
tency, and  its  decision  cannot  be  reviewed  unless  there  be  a  clear 
abuse  of  discretion,  or  the  court  admits  or  rejects  the  witness  upon 
an  erroneous  view  of  a  legal  principle.  Com.  v.  Midlins,  2  Allen, 
295;  Com.  v.  Hills,  10  Cush.  530;  State  v.Zevy,2S  Minn.  104. 

The  above  rule  has  taken  statutory  form  in  the  state  of  New 
York  and  reads  as  follows: 

"Whenever  in  any  criminal  proceedings  a  child  actually  or 
apparently  under  the  age  of  twelve  years  offered  as  a  witness  does 
not,  in  the  opinion  of  the  court  or  magistrate,  understand  the 
nature  of  an  oath,  evidence  of  such  a  child  may  be  received 
though  not  given  under  oath  if,  in  the  opinion  of  the  court  or 
magistrate  such  child  is  possessed  of  sufficient  intelligence  to  jus- 
tify the  reception  of  the  evidence.  But  no  person  shall  be  held 
or  convicted  of  an  offense  upon  such  testimony  unsupported  by 
other  evidence."     1  K  Y.  Laws,  1S02,  chap.  279,  §  392. 


COMPETENCY    AND   CREDIBILITY    OF    WITNESSES.  291 

The  admissibility  of  children  is  now  regulated,  not  by  their  age, 
but  by  their  apparent  sense  and  understanding.  It  is  a  question 
addressed  to  the  good  sense  and  discretion  of  the  "judge  whether 

O  *)  CD 

the  child  is  competent  or  not;  but  neither  the  testimony  of  the 
child  without  oath,  nor  evidence  of  any  statement  which  he  has 
made  to  any  other  person,  is  admissible.  This  is  now  the  estab- 
lished rule  in  all  cases,  criminal  and  civil.  In  practice,  it  is  not 
unusual  to  receive  the  testimony  of  children  of  eight  or  nine  years 
of  age.  "It  certainly  is  not  law,"  said  Baron  Alderson,  "that  a 
child  under  seven  cannot  be  examined  as  a  witness."  Heard, 
Crim.  Law,  §  19,  citing  Marsh  v.  Loader,  11  C.  B.  X.  S.  535; 
Powell,  Ev.  (4th  ed.)  29;  1  Stark.  Ev.  117;  2  Taylor,  Ev.  §  1212; 
Com.  v.  Hutchinson,  10  Mass.  225;  Be<j.  v.  Nicholas,  '1  Car.  &  K. 
246;  Reg.  v.  Holmes,  2  Fost.  &  E.  788;  Reg.  v.  Oulaghan,  Jebb, 
C.  C.  270;  Reg.  v.  Perkins,  2  Moody,  C.  C.  139. 

"When  a  child  of  tender  years  is  produced  as  a  witness,  it  is  the 
duty  of  the  presiding  judge  to  examine  him  or  her  without  the 
interference  of  counsel  further  than  the  judge  may  choose  to  allow, 
in  regard  to  the  obligation  of  the  witness's  oath,  and  in  proper 
cases,  to  explain  the  same  to  one  intelligent  enough  to  comprehend 
what  he  says;  and  then  to  determine  whether  or  not  such  child 
shall  be  sworn  and  permitted  to  testify.  Carter  v.  State,  03  Ala. 
52. 

e.  Summary  of  the  Foregoing  Exceptions. — In  digest  form 
the  exceptions  to  the  general  rule  of  competency  may  be  tabulated 
as  follows: — 

(1)  One  who  is  of  unsound  mind  at  the  time  of  his  production 
for  examination,  unless  upon  examination  the  court  is  satisfied  that 
he  has  sufficient  understanding  to  comprehend  the  obligation  of 
an  oath  and  to  be  capable  of  giving  a  correct  account  of  the  mat- 
ters as  to  which  he  is  to  be  examined  as  a  witness. 

(2)  Children  under  ten  years  of  age,  who  appear  incapable  of 
receiving  just  impressions  of  the  facts,  respecting  which  they  are 
examined,  or  of  relating  them  truly. 

(3)  A  public  officer  cannot  be  examined  as  to  communications 
made  to  him  in  official  confidence,  when  the  public  interests,  in 
the  opinion  of  the  judge,  would  suffer  by  the  disclosure  or  by  his 
attendance  as  a  witness. 

(4)  A  judge  of  a  court  of  record  cannot  he  compelled  to  testify 
respecting  occurrences  before  him  in  a  judicial  proceeding  and 
relating  thereto.     Cal.  Code  Civ.  Proc.  §  1880. 


292  LAW  OF  EVIDENCE  IN  CRIMINAL  CASES. 

§  201.  Credibility  of  Witnesses  is  for  the  Jury.— The  jury 
are  the  exclusive  judges  of  the  degree  of  credibility  to  be  attached 
to  the  testimony;  and  it  is  reversible  error  for  the  court  to  impair 
these  functions.  Moore  v.  State,  68  Ala.  360;  Bowers  v.  People, 
74  111.  41 S;  Terry  v.  State,  13  Ind.  70;  Knitner  v.  State,  45  Ind. 
175;  Ex  parte  Warrick,  73  Ala.  57. 

They  may  consider  his  capacity  and  opportunities  for  observing 
the  transaction  to  which  he  testifies — the  indications  of  bias  or 
prejudice  for  or  against  the  accused — the  hesitancy,  vaccilation  or 
contradiction  with  which  he  gives  his  testimony,  his  degree  of 
interest  in  the  prosecution,  his  occupation,  his  character,  and,  in 
fine,  the  general  environment  of  the  witness  in  reference  to  the 
transaction.  People  v.  JRobles,  34  Cal.  591;  Jones  v.  State,  48  Ga. 
163;  Brown  v.  State,  18  Ohio  St.  496;  Chester  v.  State,  1  Tex. 
App.  702;  State  v.  Smallwood,  75  K  C.  104;  State  v.  Miller,  53 
Iowa,  209;  People  v.  Bodine,  1  Edm.  Sel.  Cas.  36. 

The  occupation  of  a  person  may  always  be  shown,  as  bearing 
upon  his  credibility.      United  States  v.  Buff,  19  Blatchf.  9. 

Witnesses  with  the  best  opportunity  of  knowing  the  facts  are 
not  to  be  believed  in  preference  to  other  witnesses  merely  because 
of  their  superior  opportunity,  other  conditions,  such  as  general 
credibility,  etc.,  not  being  equal.  With  equality  in  other  respects, 
their  better  opportunity  entitles  them  to  be  preferred.  Gregory 
v.  State,  80  Ga.  269. 

While  the  law  within  certain  limitations  recognizes  the  compe- 
tency of  all  men  as  witnesses,  the  question  of  their  credibility  may 
be  seriously  affected  or  totally  impaired  and  in  some  instances 
utterly  annihilated  by  the  disclosures  of  the  cross-examination 
whereby  the  moral  rottenness  of  the  witness  is  exposed,  the  entire 
absence  of  moral  sense  of  accountability,  the  strong  presence  of  a 
dominating  sense,  of  personal  gain  or  advantage — the  equally  con- 
trolling influences  of  affection  and  consanguinity,  and  in  some 
instances  the  impulse  and  domination  of  unbridled  malice.  All 
these  and  other  factors  affecting  the  credibility  of  the  witnesses 
are  proper  items  for  consideration  by  the  jury  and,  in  many 
instances,  are  of  vital  importance  in  the  proper  determination  of 
the  case. 

I  will  here  remark  that  the  entire  tenor  and  trend  of  modern 
legislation  on  the  subject  of  the  admission  of  parties  as  witnesses, 
and  the  removal  of  all  disabilities  that  have  heretofore  hampered 


COMPETENCY    AND    CREDIBILITY    OF    WITNESSES.  293 

evidentiary  rules,  is  regarded  generally  with  great  satisfaction. 
The  liberal  provisions  of  the  New  York  statute,  previously  re- 
ferred to,  have  been  generally  adopted.  The  design  of  this  stat- 
ute obviously,  was  to  remove  all  disabilities,  even  those  that 
surround  a  felon;  and  courts  do  but  violence  to  its  plain  import 
and  intention,  if  they  seek  to  circumscribe  or  restrict  its  benefi- 
cent operation. 

The  force  of  a  witness's  testimony  depends  upon  the  credit  the 
jury  think  it  entitled  to;  and  no  court  has  a  right  to  lay  down  for 
a  jury  rules  whereby  they  shall  determine  the  force  of  evidence, 
irrespective  of  the  credence  they  actually  give  it  in  their  own 
minds.  People  v.  Jenness,  5  Mich.  305;  People  v.  Schweitzer,  23 
Mich.  310;  People  v.  Wallin,  55  Mich.  497.  They  are  the  sole 
and  exclusive  judges  of  the  credibility  of  the  witnesses.  With 
that  the  court  has  nothing  to  do,  and  if  they  find  from  the  evi- 
dence that  any  witness  or  witnesses  have  willfully  testified  falsely 
to  any  material  fact  in  the  cause,  they  are  at  liberty  to  disregard 
the  whole  or  any  portion  of  such  witness  or  witness's  testimony. 
State  v.  Johnson,  91  Mo.  439. 

§202.  Effect  of  False  Testimony  on  Credibility.  —  The 
question  frequently  arises  in  criminal  investigations,  as  to  the 
degree,  if  any,  of  credibility  that  shall  be  accorded  to  a  witness 
who  is  shown  to  have  testified  falsely — is  his  entire  testimony  to 
be  excluded?  Fortunately  this  question  has  been  thoroughly 
ventilated  by  the  supreme  court  of  Ohio  in  the  case  of  Stoffier  v. 
State,  15  Ohio  St.  487,  86  Am.  Dec.  470.  I  excerpt  from  an 
opinion  of  exceptional  merit  delivered  by  Mr.  Justice  Ranney 
who  read  for  reversal  in  that  case :  "An  ancient  maxim  of  the 
law  of  evidence— -falsus  in  uno,falsus  in  omnibus — would  seem 
to  import  such  exclusion  by  raising  a  presumption  of  law,  juris 
etdejure,  that  a  witness  who  is  certainly  shown  to  have  commit- 
ted perjury  upon  one  material  point  in  the  case  should  be  deemed 
wholly  unworthy  of  credit  upon  any  other,  and  his  testimony  be 
absolutely  rejected.  In  most  of  the  cases  brought  to  our  attention 
in  the  argument,  where  this  maxim  has  been  referred  to,  no 
attempt  has  been  made  to  define  its  limits  and  proper  application, 
while  in  many  it  has  been  very  inaccurately  used  as  applicable  to 
witnesses  who  have  been  merely  contradicted  upon  some  material 
point,  without  raising  any  just  imputation  of  perjury  against 
them.     Among   the    elementary   writers  upon   evidence    whose 


294  LAW    OF    EVIDENCE    IN    CRIMINAL    CASES. 

works  have  been  examined  by  us,  Mr.  Starkie  alone  has  stated  the 
solid  reasons  upon  which  the  maxim  rests,  and  the  case  to  which 
alone  it  can  be  applied.  He  says :  'As  the  credit  due  to  a  wit- 
ness is  founded  in  the  first  instance  on  general  experience  of 
human  veracity,  it  follows  that  a  witness  who  gives  false  testimony 
as  to  one  particular  cannot  be  credited  as  to  any,  according  to  the 
legal  maxim,  falsus  in  uno,  falsus  in  omnibus.  The  presump- 
tion that  the  witness  will  declare  the  truth  ceases  as  soon  as  it 
manifestly  appears  that  he  is  capable  of  perjury.  Faith  in  a 
witness's  testimony  cannot  be  partial  or  fractional;  where  any 
material  fact  rests  on  his  testimony,  the  degree  of  credit  due  to 
him  must  be  ascertained,  and  according  to  the  result,  his  testi- 
mony is  to  be  credited  or  rejected.'  'It  is  scarcely  necessary  to 
observe,'  he  adds,  'that  this  principle  does  not  extend  to  the  total 
rejection  of  a  witness  whose  misrepresentation  has  resulted  from 
mistake  or  infirmity,  and  not  from  design;  but  though  his  honesty 
remain  unimpeached,  this  is  a  consideration  which  necessarily 
affects  his  character  for  accuracy.'    1  Stark.  Ev.  873." 

This  subject  was  considered  by  the  court  in  Dunn  v.  People, 
29  N.  Y.  523,  86  Am.  Dec.  319,  and  each  of  the  judges  who  de- 
livered opinions  in  that  case  arrived  at  the  conclusion  that  the 
jury  were  still  at  liberty  to  consider  the  evidence  of  such  a  wit- 
ness; notwithstanding  the  fact  of  his  having  sworn  falsely  con- 
cerning the  same  subject  upon  a  preceding  examination.  In 
referring  to  this  subject,  Denio,  Ch.  J.,  stated  that,  "the  true 
question  is  whether,  when  it  appears  that  the  witness  has  sworn 
differently  upon  the  same  point  on  a  former  occasion  he  is  to  be 
pronounced  by  the  judge  to  be  incompetent  and  his  testimony 
stricken  out  and  wholly  excluded  from  consideration,  as  though 
he  had  been  convicted  of  crime  rendering  him  incompetent  to 
testify  as  a  witness,  or  whether  the  testimony  remains  in  the  case 
to  be  considered  by  the  jury  in  connection  with  the  other  evi- 
dence, under  such  prudential  instructions  as  may  be  given  by  the 
court  and  subject  to  the  determination  of  the  court  having  a  ju- 
risdiction to  grant  new  trials  in  cases  of  verdicts  against  evidence. 
In  my  opinion,  the  latter  is  the  correct  principle  of  law."  And 
ns  this  was  assented  to  by  Ingraham,  J.,  who  delivered  the  other 
opinion,  and  by  all  the  other  judges  of  the  court,  it  seems  to  be 
sufficient  to  establish  it  as  the  principle  which  should  be  followed 
under  this  state  of  facts  on  the  trial  of  an  indictment.     The  same 


COMPETENCY    AND    CREDIBILITY    OF    WITNESSES.  295 

point  was  further  examined  in  Deering  v.  Metcalf,  74  1ST.  Y.  501, 
where  the  cases  were  fully  considered  and  the  disposition  of  the 
court  appeared  to  be  to  follow  the  principle  which  has  just  been 
stated,  and  not  that  in  general  terms  announced  in  Dunlop  v. 
Patterson,  5  Cow.  243.  Further  consideration  was  given  on  this 
subject  in  People  v.  Peavey,  38  Hun,  418,  4  N.  Y.  Crim.  Rep.  1, 
where  the  same  rule  was  followed,  and  as  that  case  has  been 
affirmed  by  the  court  of  appeals  it  is  in  the  nature  of  a  conclusive 
■authority. 

"The  tendency  of  modern  authority  is  to  relax  and  restrict  the 
application  of  the  maxim  falsus  in  uno,falsus  in  omnibus.  The 
jury  are  nut  bound  to  wholly  discredit  a  witness  if  his  testimony  as 
to  material  facts  is  corroborated  by  other  credible  and  unimpeached 
witnesses.  In  Grimes  v.  State,  63  Ala.  166,  it  is  said,  'We  are  pre- 
pared to  follow  the  line  of  authorities  which  hold  the  maxim  is  not 
a  rule  of  law  operating  a  disqualification  of  the  witness,  to  be  given 
in  charge  to  the  jury  as  imperatively  binding  them;  that  it  is  to  be 
applied  by  the  jury  according  to  their  sound  judgment  for  the 
ascertainment  and  not  for  the  exclusion  of  truth.'  The  charge 
given  by  the  court  is  in  accordance  with  this  rule.  It  does  not 
instruct  the  jury  that  they  are  bound  to  disregard  the  testimony 
of  impeached  witnesses,  but  left  it  to  their  sound  discretion  and 
judgment.  .  .  .  The  present  charge  is  based  on  the  willful  and 
corrupt  false  swearing  of  the  witnesses.  In  such  case  there  is  no 
error  in  instructing  the  jury  that  they  may  disregard  their  evi- 
dence."    Jordan  v.  State,  81  Ala.  20. 

There  is  no  rule  of  law  that  the  entire  testimony  of  such  a  wit- 
ness must  be  disregarded.  People  v.  Reavey,  38  Hun,  418,  4  N. 
Y.  Crim.  Rep.  1;  People  v.  Buddensiek,  4  N.  Y.  Crim.  Rep. 
230;  People  v.  Stott,  4  N.  Y.  Crim.  Rep.  306. 


CHAPTER  XXX. 

PRIVILEGE  OF  WITNESSES. 

§  203.  Refusal  to  Answer  Criminating  Questions. 

204.  Witness  may  Waive  his  Privilege. 

205.  Court  must  Determine  the  Force  of  the  Refusal. 
200.  Restrictions  upon  the  Privilege. 

207.  Recent  Judicial  Reviews  of  the  Subject. 

208.  Tlie  Privilege  of  Attorneys. 

209.  The  Privilege  of  Physicians. 

210.  The  Privilege  of  Clergymen. 

§  203.  Refusal  to  Answer  Criminating  Questions. — It  often 
happens  that  a  question  is  asked  a  witness,  the  answer  to  which 
would  not  of  itself  be  self-criminating,  but  would  form  a  "link" 
in  the  chain  of  testimony  which  would  involve  a  conviction.  In 
such  case,  by  numerous  authorities,  it  is  held  that  he  is  entitled  to 
protection  without  explaining  how  the  answer  would  criminate 
him.  And  the  court  is  bound  to  advise  him  of  the  effect  of  an 
answer  by  him.  Lea  v.  Henderson,  1  Coldw.  146;  Short  v.  Stater 
4  Harr.  (Del.)  56S;  Marshall  v.  Riley,  7  Ga.  367;  Hickman  v. 
State,  2  G.  Greene,  532;  RoUnson  v.  Need,  5  T.  B.  Mon.  213; 
Rutherford  v.  Corn.  2  Met.  (Ky.)  387;  State  v.  Marshall,  36  Mo. 
400;  Coburn  v.  Odell,  30  JS".  H.  540;  Janvrin  v.  Scammon,  29  JST. 
H.  280;  Bank  of  Salina  v.  Henry,  2  Denio,  156;  United  States 
v.  Moses,  1  Cranch,  C.  C.  170;  Sanderso?i,s  Case,  3  Cranch,  C.  C 
638;  United  States  v.  Lynn,  2  Cranch,  C.  C.  309;  Fries  v.  Brug- 
ler,  12  N.  J.  L.  91;  Stewart  v.  Turner,  3  Edw.  Ch.  458;  United 
States  v.  Strother,  3  Cranch,  C.  C.  432;  People  v.  Mather,  4  Wend. 
229;  Poole  v.  Perritt,  1  Speer,  L.  12S;  Chamberlain  v.  Wilson, 
12  Yt.  491;  Cook  v.  Corn,  1  Overt,  340;  State  v.  Edward*,  2 
Xott  <fe  McC.  L.  13;  Southard  v.  Bedford,  6  Cow.  259;  Piekard 
v.  Collins,  23  Barb.  444;  Pleasant  \.  State,  15  Ark.  624;  FLigdon 
v.  Heard,  14  Ga.  256;  Fisher  v.  Ronalds,  16  Eng.  L.  &  Eq.  417; 
Hageman,  Privileged  Communications,  §  259. 

§  204.  Witness  may  Waive  his  Privilege. — While  it  is  the 
privilege  of  the  witness  to  refuse  to  answer  the  question  tending 
to  criminate,  he  may  waive  his  privilege  at  any  stage  of  the 

296 


I'KIVILEGE    OF    WITNESSES.  29T 

inquiry.  Iligdon  v.  Heard,  14  Ga.  256;  Pleasant  v.  State,  15 
Ark.  624;  Pickard  v.  Collins,  23  Barb.  444;  Southard  v.  fiex- 
ford,  6  Cow.  259;  State  v.  Edwards,  2  Nott  &  McC.  L.  13;  Cook 
v.  Corn,  1  Overt.  340;  Chamberlain  v.  Wilson,  12  Vt.  491;  jFW<? 
v.  Perritt,  1  Speer,  L.  128;  P^qpfe  v.  Mather,  4  Wend.  229;  ^Steic- 
<z7tf  v.  Turner,  3  Edw.  Cli.  458.  A  waiver  by  his  counsel  is 
equally  effective. 

§  205.  Court  must  Determine  the  Force  of  the  Refusal.— 
The  court  must,  in  the  first  instance,  determine  whether  the  ques- 
tion is  such  that  it  may  be  reasonably  inferred  that  the  answer 
made  is  criminating;  and  the  nature  of  the  answer,  as  it  is  known 
to  the  witness  alone,  he  alone  must  decide.  If  the  information 
sought  may  be  self -accusing,  and  the  witness  says  it  is,  he  need 
not  answer.  LaFontaine  v.  Southern  Underwriters  Asso.,  S3  N. 
C.  132. 

"If  a  witness,"  says  Judge  Denio,  "object  to  a  question  on  the- 
ground  that  an  answer  would  criminate  himself,  he  must  allege  in 
substance  that  his  answer,  if  repeated  as  his  admission  on  his  own 
trial,  would  tend  to  prove  him  guilty  of  a  criminal  offense,"  add- 
ing, "if  the  case  is  so  situated  that  a  repetition  of  it  on  a  prosecu- 
tion against  him  is  impossible,  as  where  it  is  forbidden  by  a  posi- 
tive statute,  I  have  seen  no  authority  which  holds  or  intimates 
that  the  witness  is  privileged."     People  v.  Kelly,  24  N.  Y.  74. 

It  is  of  the  utmost  importance  to  heed  this  paragraph  from  the 
opinion  of  Judge  Denio,  as  by  express  legislation  in  many  juris- 
dictions a  witness  summoned  before  an  inquisitorial  body,  judicial 
or  legislative,  is  protected  from  criminal  prosecution,  in  so  far  as 
his  answers  given  before  such  body  may  be  used  against  him. 
The  corollary  follows  that  in  jurisdictions  where  such  legislation 
prevails,  the  privilege  of  silence  has  become  practically  annihi- 
lated. 

An  early  Iowa  case  declares  that  in  no  event  is  it  left  to  the 
witness  to  determine,  whether  his  answer  would  tend  to  criminate 
him  or  not.  He  is  not  required  to  explain  how  he  would  be  crim- 
inated, for  this  would  or  might  annihilate  the  protection  secured 
by  the  rule.  But  it  is  for  the  court  to  determine  whether  the 
answer  can  criminate  him,  directly  or  indirectly,  by  furnishing 
direct  evidence  of  his  guilt,  or  by  establishing  one  of  many  facts 
which,  together,  may  constitute  a  chain  of  testimony  sufficient  to 
warrant  his  conviction,  but  one  part  of  which,  by  itself,  could  not 
produce  such  result.     State  v.  Duffy,  1">  Iowa,  425. 


.298  LAW    OF    EVIDENCE    IN    CELMLNAL   CASES. 

§  206.  Restrictions  upon  the  Privilege. — The  privilege  of 
refusing  to  answer  is  restricted  to  questions,  answering  which 
may  tend  to  criminate  the  witness,  or  expose  him  to  punishment. 
Hall  v.  State,  40  Ala.  698.  It  is  an  established  and  universally 
.accepted  maxim  of  the  common  law,  that  a  witness  shall  not  be 
compelled  to  answer  any  question  that  tends  to  criminate  him,  or 
to  expose  him  to  a  criminal  prosecution,  or  to  a  penalty;  which 
finds  expression  in  the  constitutional  guaranty,  that  no  person 
shall  be  compelled  to  give  evidence  against  himself.  The  right 
•of  exemption  extends,  not  only  to  answers  which  may  criminate, 
but  also  to  such  as  may  tend  to  criminate. 

On  the  trial  of  a  female,  charged  with  being  a  common  prosti- 
tute, and  having  no  honest  employment,  whereby  to  maintain  her- 
self, the  petitioner  was  called  by  the  prosecution  and  sworn  as  a 
witness.  Having  testified  that  he  was  a  witness  before  the  grand 
jury  when  the  indictment  was  found,  the  question  was  proposed  to 
him,  whether  or  not  he  had  had  sexual  intercourse  with  the  accused 
within  six  months  prior  to  the  time  he  was  before  the  grand  jury. 
The  court  instructed  the  witness  that  it  was  his  duty,  and  directed 
him,  to  answer  the  question.  The  witness  refused  to  answer, 
whereupon  the  court  adjudged  him  guilty  of  a  contempt,  and 
ordered  his  imprisonment.  It  was  the  province  of  the  court  to 
determine,  in  the  first  instance,  whether  a  direct  answer  to  the 
question  proposed  would  furnish  criminating  evidence  against  the 
witness.  The  rule  is  founded  on  the  duty  of  the  court  to  take  care 
that  the  exercise  of  the  privilege  shall  not  extend,  by  mistake  or 
error  of  the  witness,  or  on  simulated  pretense,  to  the  suppression 
of  evidence,  which  is  necessary  to  the  due  administration  of  the 
law,  and  in  giving  which  there  can  be  no  real  and  appreciable 
danger  of  crimination,  or  exposure  to  prosecution,  or  to  any  kind 
of  punishment.  Calhoun  v.  Thompson,  56  Ala.  166,  28  Am.  Rep. 
754.  It  is  also  of  the  highest  importance,  that  the  witness  shall 
be  protected  in  the  proper  and  rightful  exercise  of  his  privilege, 
which  has  for  its  object  the  security  of  life  and  liberty.  The 
court  should  not  require  the  witness  to  fully  explain  the  manner 
in  which  his  answer  may  tend  to  criminate  him,  as  the  purpose  of 
the  privilege  may  be  thereby  defeated;  nor  should  he  be  required 
to  answer,  when  he  claims  his  privilege,  unless  from  the  nature 
of  the  answer,  and  the  circumstances  of  the  case,  it  is  evident  to 
the  court  that  his  answer  can  not  have  any  tendency  to  expose 


PRIVILEGE    OF    WITNESSES.  299 

■him  to  a  criminal  charge  or  prosecution,  or  to  a  penalty.  If  the 
prosecution  for  the  offense  is  barred  by  the  statute  of  limitations, 
the  reason  of  the  privilege  ceases,  and  the  witness  should  be  com- 
pelled to  answer.     See  cases  cited  in  §  205. 

Professional  communications  are  not  privileged  when  such 
communications  are  for  an  unlawful  purpose,  having  for  their 
object  the  commission  of  crime.  They  then  partake  of  the  nature 
of  a  conspiracy,  or  attempted  conspiracy,  and  it  is  not  only  lawful 
to  divulge  such  communications,  but  under  certain  circumstances 
it  might  become  the  duty  of  the  attorney  to  do  so.  The  interests 
of  public  justice  require  that  no  such  shield  from  merited  expos- 
ure shall  be  interposed  to  protect  a  person  who  takes  counsel  how 
he  can  safely  commit  a  crime.  The  relation  of  attorney  and  cli- 
ent cannot  exist  for  the  purpose  of  counsel  in  concocting  crimes. 
The  privilege  does  not  exist  in  such  cases.  1  Gilbert,  Ev.  277; 
GreenougJi  v.  G<zskell,  1  Myl.  &  K.  OS;  Coveney  v.  Tannahill,  1 
Hill,  33;  Bank  of  Uiica  v.  Mersereau,  3  Barb.  Ch.  52S;  People 
v.  Blakeley,  1  Park.  Crim.  Rep.  176;  1  Whart.  Crim.  Law,  §  773; 
Itoscoe,  Crim.  Ev.  150;  People  v.  VanAlstLne,  57  Mich.  69. 

§  207.  Recent  Judicial  Reviews   of  the  Subject. — Judge 

Mitchell  of  the  supreme  court  of  Minnesota  has  furnished  a  sin- 
gularly apt  exposition  on  this  entire  subject  in  the  case  of  State  v. 
Thaden,  13  Minn.  253. 

This  decision  was  rendered  in  1S90  and  states  the  rules  that 
obtain  in  all  jurisdictions  with  reference  to  the  topic. 

"While  no  principle  of  the  common  law  is  more  firmly  established 
than  that  which  affords  a  witness  the  privilege  of  refusing  to  an- 
•swer  any  question  which  will  criminate  himself,  yet  its  application 
is  attended  with  practical  difficulties.  To  hold  that  the  witness 
himself  is  the  sole  and  absolute  judge  whether  the  answer  will  crim- 
inate him  would  be  to  place  it  in  his  power  to  withhold  evidence 
whenever  he  saw  fit.  Such  a  rule  could  not  be  tolerated  for  a 
moment.  On  the  other  hand,  to  require  him  to  state  what  answer 
he  would  have  to  give,  or  to  explain  fully  how  his  answer  would 
tend  to  criminate,  would  deprive  him  of  the  very  protection 
which  the  law  designs  to  afford.  Moreover,  the  reason  of  the 
rule  forbids  that  it  should  be  limited  to  confessions  of  guilt,  or 
■statements  which  may  be  proved  in  subsequent  prosecutions  as 
.admissions  of  facts  sought  to  be  established  therein;  but  it  should 
'be  extended  to  the  disclosure  of  any  fact  which  might  constitute 


300  LAW    OF    EVIDENCE    IN    CRIMINAL    CASES. 

an  essential  link  in  a  chain  of  evidence  by  which  guilt  might  be 
established,  although  the  fact  alone  would  not  indicate  any  crime. 
Hence  the  problem  is  how  to  administer  the  rule  so  as  to  afford 
full  protection  to  the  witness,  and  at  the  same  time  prevent  simu- 
lated excuses.     All  the  authorities  agree  to  the  general  proposi- 
tion that  the  statement  of  the  witness  that  the  answer  will  tend 
to  criminate  himself  is  not  necessarily  conclusive,  but  that  this  is 
a  question  which  the  court  will  determine  from  all  the  circum- 
stances of  the  particular  case,  and  the  nature  of  the  evidence- 
which  the  witness  is  called  upon  to  give.     But  the  question  on. 
which  the  cases  seem  to  differ  is  as  to  what  we  may  call  the  bur- 
den of  proof;  some  holding  that  the  statement  of  the  witness  must 
be  accepted  as  true,  unless  it  affirmatively  appears  from  the  cir- 
cumstances of  the  particular  case  that  he  is  mistaken,  or  acts  in 
bad  faith,  while  other  cases  hold  that,  to  entitle  a  witness  to  the 
privilege  of  silence,  the  court  must  be  able  to  see,  from  the  cir- 
cumstances of  the  case  and  the  nature  of  the  evidence  called  for, 
that  there  is  reasonable  ground  to  apprehend  danger  to  the  wit- 
ness, if  he  is  compelled  to  answer.     The  following  are  a  few  of 
the  leading  cases  treating  on  this  subject:     1  Burr's  Trial,  255:. 
People  v.  Mather,  4  Wend.   229;    Ward  v.  State,  2  Mo.  120; 
Kirsehner  v.  State,  9  Wis.  140;   Chamberlain  v.  Wilson,  12  Vt. 
491;  Janvrin  v.  Scammon,  29  K  H.  280;  Fries  v.  Brugler,  12 
N".  J.  L.  91;  Temple  v.  Com.  65  Ya.  892;  La  Fontaine  v.  Southern 
Underwriters  Asso.,  83  K  C.  132;  Reg.  v.  Boyes,  1  Best  &  S.  311. 
The  difference  is  theoretical,  rather  than  practical;  for  it  would 
be  difficult  to  conceive  of  an  instance  where  the  circumstances  of 
the  case,  and  the  nature  of  the  evidence  called  for,  would  be  en- 
tirely neutral  in  their  probative  force  upon  the  question  whether 
or  not  there  was  reasonable  ground  to  apprehend  that  the  answer 
might  tend  to  criminate  the  witness.     After  consideration  of  the- 
question  and  an  examination  of  the  authorities,  our  conclusion 
is  that  the  best  practical  rule  is  that  laid  down  in  some  of  the- 
English  cases,  and  adopted  and  followed  by  Chief  Justice  Cock- 
burn,  in  Reg.  v.  Boyes,  supra,  '  that,  to  entitle  a  party  called  as- 
a  witness  to  the  privilege  of  silence,  the  court  must  see,  from  the 
circumstances  of  the  case  and  the  nature  of  the  evidence  which 
the  witness  is  called  to  give,  that  there  is  reasonable  ground  to 
apprehend  danger  to  the  witness  from  his  being  compelled  to  an- 
swer.'    To  this  we  would  add  that,  when  such  reasonable  appre- 


PRIVILEGE   OF   "WITNESSES.  301 

liension  of  danger  appears,  then,  inasmuch  as  the  witness  alone 
knows  the  nature  of  the  answer  he  would  give,  he  alone  must 
•decide  whether  it  would  criminate  him.  This,  we  think,  is  sub- 
stantially what  Chief  Justice  Marshall  meant  by  his  statement  of 
the  rule  in  the  Burr  trial.  As  was  said  in  Reg.  v.  Boyes,  supra, 
the  danger  to  be  apprehended  must  be  real  and  appreciable,  with 
reference  to  the  ordinary  operation  of  law,  in  the  ordinary  course 
of  things;  not  a  danger  of  an  imaginary  or  unsubstantial  charac- 
ter, having  reference  to  some  extraordinary  and  barely  possible 
contingency,  so  improbable  that  no  reasonable  man  would  suffer 
it  to  influence  his  conduct.  A  merely  remote  and  naked  possi- 
bility, out  of  the  ordinary  course  of  the  law,  and  such  as  no  rea- 
sonable man  would  be  affected  by,  should  not  be  suffered  to 
obstruct  the  administration  of  justice."  Lea  v.  Henderson,  1 
Coldw.  146;  Robinson  v.  Neal,  5  T.  B.  Mon.  213;  Short  v.  State, 
4  Harr.  (Del.)  568;  State  v.  Marshall,  36  Mo.  400;  Cocklurn  v. 
Odell,  30  N.  H.  540;  Marshall  v.  Riley,  7  Ga.  367;  Richman  v. 
State,  2  G.  Greene,  532;  Bank  of  Salina  v.  Henry,  2  Denio,  155; 
People  v.  Mather,  4  Wend.  229;  United  States  v.  Moses,  1  Cranch, 
C.  C.  170;  United  States  v.  Lynn,  2  Cranch,  C.  C.  309;  United 
States  v.  Strother,  3  Cranch,  C.  C.  432;  Chamberlain  v.  Wilson, 
12  Vt.  491;  Pleasant  v.  State,  15  Ark.  624;  Richard  v.  Collins, 
23  Barb.  444. 

A  further  review  of  the  subject  in  adjudged  cases  will  be  use- 
ful. 

In  Respublica  v.  Gills,  3  Yeates,  429,  and  4  U.  S.  4  Dall.  253, 
1  L.  ed.  822,  in  1802,  the  declaration  of  rights  in  the  constitution 
•of  Pennsylvania  of  1776,  declared  that  no  man  can  "be  compelled 
to  give  evidence  against  himself,"  and  the  same  language  was 
found  in  the  constitution  of  1790.  Under  this,  the  supreme 
court  of  Pennsylvania  held  that  the  maxim  that  no  one  was  bound 
to  accuse  himself  extended  to  cases  where  the  answer  might 
involve  him  in  shame  or  reproach;  and  it  held  to  the  same  effect 
in  Gallreaih  v.  Eichellerger,  3  Yeates,  515,  in  1803. 

In  June,  1807,  Chief  Justice  Marshall,  in  the  Circuit  Court  of 
the  United  States  for  the  District  of  Virginia,  in  the  Burr  trial 
(1  Burr's  Trial,  244)  on  the  question  whether  the  witness  was 
privileged  not  to  accuse  himself,  said :  "If  the  question  be  of 
such  a  description  that  an  answer  to  it  may  or  may  not  criminate 
the  witness,  according  to  the  purport  of  that  answer,  it  must  rest 


3(j2  LAW    OF    EVIDENCE    IN    CRIMINAL   CASES. 

with  himself,  who  alone  can  tell  what  it  would  be,  to  answer  the- 
question  or  not.  If,  in  such  a  case,  he  says  upon  his  oath,  that 
the  answer  would  criminate  himself,  the  court  can  demand  no 
other  testimony  of  the  fact.  .  .  .  According  to  their  state- 
ment" (the  counsel  for  the  United  States)  "a  witness  can  never 
refuse  to  answer  any  question,  unless  that  answer,  unconnected 
with  other  testimony,  would  be  sufficient  to  convict  him  of  crime. 
This  would  be  rendering  the  rule  almost  perfectly  worthless. 
Many  links  frequently  compose  that  chain  of  testimony  which  is 
necessary  to  convict  any  individual  of  a  crime.  It  appears  to  the 
court  to  be  the  true  sense  of  the  rule  that  no  witness  is  compella- 
ble to  furnish  any  one  of  them  against  himself.  It  is  certainly 
not  only  a  possible,  but  a  probable  case,  that  a  witness,  by  dis- 
closing a  single  fact,  may  complete  the  testimony  against  himself; 
and  to  every  effectual  purpose  accuse  himself  as  entirely  as  he 
would  by  stating  every  circumstance  which  would  be  required  for 
his  conviction.  That  fact  of  itself  might  be  unavailing,  but  all 
other  facts  without  it  would  be  insufficient.  "While  that  remains 
concealed  within  his  own  bosom,  he  is  safe,  but  draw  it  from 
thence,  and  he  is  exposed  to  a  prosecution.  The  rule  which  de- 
clares that  no  man  is  compellable  to  accuse  himself,  would  most 
obviously  be  infringed,  by  compelling  a  witness  to  disclose  a  fact 
of  this  description.  The  court  ought  never  to  compel  a  witness 
to  give  an  answer  which  discloses  a  fact  that  would  form  a  neces- 
sary and  essential  part  of  a  crime  which  is  punishable  by  the  laws." 
In  Higdon,  v.  Heard,  14  Ga.  255,  in  1853,  it  was  said  that  the 
constitution  of  Georgia  declared  "that  no  person  shall  be  com- 
pelled in  any  criminal  case  to  be  a  witness  against  himself."  In 
that  case  the  plaintiff  had  filed  a  bill  in  equity  praying  a  discov- 
ery as  to  property  which  he  alleged  the  defendants  had  won  from 
him  in  a  game  of  cards.  The  bill  was  demurred  to  on  the  ground 
that  the  law  of  the  state  compelling  a  discovery  of  gaming  trans- 
actions was  unconstitutional,  because  such  transactions  were  crim- 
inal, and  the  statute  did  not  grant  an  absolute  and  unconditional 
release  from  punishment,  and  because  the  defendants  could  not 
make  the  discovery  sought  without  criminating  themselves  and 
incurring  penalties.  The  demurrer  was  overruled  by  the  supreme 
court  of  Georgia,  on  the  ground  that,  although  all  persons  were 
protected  by  the  constitution  from  furnishing  evidence  against 
themselves  which  might  tend  to  subject  them  to  a  criminal  prose- 


PRIVILEGE    OF    WITNESSES.  303 

cution,  they  received  their  protection  by  virtue  of  an  act  of 
Georgia  of  1764,  because,  under  that  act,  their  answers  could  not 
be  read  in  evidence  against  them  in  any  criminal  case  whatever, 
being  excluded  by  the  constitution. 

In  Ex  parte  Bowe,  7  Cal.  484,  in  1857,  the  constitution  of  Cali- 
fornia of  1849  provided,  art.  1,  §  8,  that  no  person  shall  "be  com- 
pelled in  any  criminal  case  to  be  a  witness  against  himself." 
Rowe  had  been  committed  for  refusing  to  answer,  under  an  order 
<>f  the  court,  certain  questions  propounded  to  him  by  the  grand 
jury  in  an  examination  concerning  the  disposition  of  certain  mon- 
eys taken  from  the  state  treasury,  on  the  ground  that  his  answer 
would  disgrace  him  and  would  tend  to  subject  him  to  a  prosecu- 
tion for  felony.  The  supreme  court  of  California,  on  habeas  cor- 
pus, considered  the  construction  and  constitutionality  of  the  5th 
section  of  an  act  passed  April  16,  1855,  which  provided,  that 
'"the  testimony  given  by  such  witness  shall  in  no  instance  be  used 
against  himself  in  any  criminal  prosecution."  The  court  held 
that  the  provision  of  the  constitution  was  intended  to  protect  the 
witness  from  being  compelled  to  testify  against  himself  in  regard 
to  a  criminal  offense;  that  he  could  not  be  a  witness  against  him- 
self unless  his  testimony  could  be  used  against  him  in  his  own  case; 
and  that  the  statute  gave  the  witness  that  protection  which  was 
contemplated  by  the  constitution,  and  therefore  he  was  bound  to 
answer. 

The  constitution  of  the  state  of  New  York  declares,  that  no 
person  shall  "be  compelled,  in  any  criminal  case,  to  be  a  witness 
against  himself."  In  the  case  of  People  v.  Kelly,  24  X.  Y.  74. 
one  Hackley,  as  a  witness  before  the  grand  jury  on  a  complaint 
against  certain  aldermen  for  feloniously  receiving  a  gift  of  money 
under  an  agreement  that  their  votes  should  be  influenced  thereby 
in  a  matter  then  pending  before  them,  in  answer  to  a  question 
put  to  him  as  to  what  he  had  done  with  certain  money  which  he 
had  received,  said  that  any  answer  which  he  could  give  to  the 
question  would  disgrace  him,  and  would  have  a  tendency  to  accuse 
him  of  a  crime  and  he  demurred  to  the  question.  Having  been 
ordered  by  the  court  of  general  sessions  of  the  peace  to  answer  it. 
in'  .-till  refused  and  was  adjudged  guilty  of  contempt  and  put  in 
prison.  On  a  writ  of  habeas  corpus,  he  was  remanded  into  cus 
tody  by  the  supreme  court,  and  he  appealed  to  the  court  of 
appeals. 


■3Ui  LAW    OF    EVIDENCE    IN    CRIMINAL    CASES. 

That  court,  speaking  by  Judge  Denio,  said:  "The  mandate 
that  an  accused  person  should  not  be  compelled  to  give  evidence 
against  himself,  would  fail  to  secure  the  whole  object  intended 
if  a  prosecutor  might  call  an  accomplice  or  confederate  in  a  crim- 
inal offense,  and  afterwards  use  the  evidence  he  might  give  to 
procure  a  conviction,  on  the  trial  of  an  indictment  against  him- 
If  obliged  to  testify,  on  the  trial  of  the  co-offender,  to  matters 
which  would  show  his  own  complicity,  it  might  be  said,  upon  a 
very  liberal  construction  of  the  language,  that  he  was  compelled 
to  give  evidence  against  himself — that  is,  to  give  evidence  which 
might  be  used  in  a  criminal  case  against  himself.  ...  It  is, 
of  course,  competent  for  the  legislature  to  change  any  doctrine 
of  the  common  law,  but  I  think  they  could  not  compel  a  witness 
to  testify,  on  the  trial  of  another  person,  to  facts  which  would 
prove  himself  guilty  of  a  crime,  without  indemnifying  him  against 
the  consequences,  because,  by  a  legal  construction,  the  constitution 
would  be  found  to  forbid  it."  But  the  court  went  on  to  say:  "If 
a  man  cannot  give  evidence  upon  the  trial  of  another  person  with- 
out disclosing  circumstances  which  will  make  his  own  guilt  appar- 
ent, or  at  least  capable  of  proof,  though  his  account  of  the  trans- 
actions should  never  be  used  as  evidence,  it  is  the  misfortune  of 
his  condition,  and  not  any  want  of  humanity  in  the  law.  If  a 
witness  objects  to  a  question  on  the  ground  that  an  answer  would 
criminate  himself,  he  must  allege,  in  substance,  that  his  answer,  if 
repeated  as  his  admission,  on  his  own  trial,  would  tend  to  prove 
iiim  guilty  of  a  criminal  offense.  If  the  case  is  so  situated  that  a 
repetition  of  it  on  a  prosecution  against  him  is  impossible,  as 
where  it  is  forbidden  by  a  positive  statute,  I  have  seen  no  author- 
ity which  holds  or  intimates  that  the  witness  is  privileged.  It  is 
not  within  any  reasonable  construction  of  the  language  of  the  con- 
stitutional provision.  The  term,  'criminal  case,'  used  in  the  clause 
must  be  allowed  some  meaning,  and  none  can  be  conceived  other 
than  a  prosecution  for  a  criminal  offense.  But  it  must  be  a 
prosecution  against  him;  for  what  is  forbidden  is  that  he  should 
be  compelled  to  be  a  witness  against  himself.  Now  if  he  be 
prosecuted  criminally,  touching  the  matter  about  which  he  has 
testified  upon  the  trial  of  another  person,  the  statute  makes  it 
impossible  that  his  testimony  given  on  that  occasion  should  be 
used  by  the  prosecution  on  the  trial.  It  cannot,  therefore,  be  said 
that  in  such  criminal  case  he  has  been  made  a  witness  against  him- 


PRIVILEGE    OF    WITNESSES.  305 

self,  by  force  of  any  compulsion  used  toward  him  to  procure,  in 
the  other  case,  testimony  which  cannot  possibly  be  used  in  the 
criminal  case  against  himself." 

In  Kim  ry's  Case,  107  Mass.  172,  Emery  was  summoned  as  a 
witness  before  the  joint  special  committee  of  the  general  .court 
appointed  "to  inquire  if  the  state  police  is  guilty  of  bribery  and 
corruption."  Interrogatories  were  propounded  to  him  by  the 
committee,  which  he  declined  to  answer.  On  a  report  of  the  facts 
to  the  senate,  it  ordered  his  arrest  for  contempt.  He  was  brought 
before  the  senate  and  asked  the  following  question :  "Are  you 
ready  and  willing  to  answer  .  .  .  the  following  questions, 
namely:  First,  "Whether,  since  the  appointment  of  the  state  con- 
stabulary force,  you  have  ever  been  prosecuted  for  the  sale  or 
keeping  for  sale  of  intoxicating  liquors.  Second.  Have  you  ever 
paid  any  money  to  any  state  constable,  and  do  you  know  of  any 
■corrupt  practice  or  improper  conduct  of  the  state  police?  If  so, 
state  fully  what  sums,  and  to  whom  you  have  thus  paid  money, 
and  also  what  you  know  of  such  corrupt  practice  and  improper 
conduct."  He  answered  in  writing  as  follows :  "Intending  no 
disrespect  to  the  honorable  senate,  I  answer,  under  advice  of 
counsel,  that  I  am  ready  and  willing  to  answer  the  first  question, 
but  I  decline  to  answer  the  second  question,  upon  the  grounds, 
First,  that  the  answer  thereto  will  accuse  me  of  an  indictable 
offense;  Second,  that  the  answer  thereto  will  furnish  evidence 
.against  me  by  which  I  can  be  convicted  of  such  an  offense."  The 
senate  thereupon  committed  him  to  the  custody  of  the  sergeant  at 
Arms,  to  be  confined  to  jail  for  twenty-five  days,  or  until  the  fur- 
ther order  of  the  senate,  unless  he  should  sooner  answer  the  ques- 
tions. He  was  imprisoned  accordingly,  and  the  case  was  brought 
before  Judge  Wells  of  the  supreme  judicial  court  on  a  writ  of 
habeas  corpus,  and  was  fully  argued.  It  was  held  under  advise- 
ment and  for  conference  with  the  other  judges;  and  in  the  opin- 
ion subsequently  delivered  hj  Judge  Wells  it  is  stated,  that  that 
opinion  had  the  approval  and  unanimous  concurrence  of  all  the 
members  of  the  court.  It  is  said  in  the  opinion:  "It  is  appar- 
ent that  an  affirmative  answer  to  the  question  put  to  him  might 
tend  to  show  that  he  had  been  guilty  of  an  offense." 

In  regard  to  the  clause  above  quoted  from  the  bill  of  rights,  the 
opinion  says:  "By  the  narrowest  construction,  this  prohibition 
extends  to  all  investigations  of  an  inquisitorial  nature,  instituted 
20 


306  LAW    OF    EVIDENCE    IN    CRIMINAL   CASES. 

for  the  purpose  of  discovering  crime,  or  the  perpetrators  of  crime,, 
by  putting  suspected  parties  upon  their  examination  in  respect 
thereto,  in  any  manner;  although  not  in  the  course  of  any  pending 
prosecution.  But  it  is  not  even  thus  limited.  The  principle 
applies  equally  to  any  compulsory  disclosure  of  his  guilt  by  the- 
offender  himself,  whether  sought  directly  as  the  object  of  the  in- 
quiry, or  indirectly  and  incidentally  for  the  purpose  of  establish- 
ing facts  involved  in  an  issue  between  other  parties.  If  the 
disclosure  thus  made  would  be  capable  of  being  used  against 
himself  as  a  confession  of  crime,  or  an  admission  of  facts  tending 
to  prove  the  commission  of  an  offense  by  himself,  in  any  prose- 
cution then  pending,  or  that  might  be  brought  against  him  there- 
for, such  disclosure  would  be  an  accusation  of  himself,  within  the- 
meaning  of  the  constitutional  provision.  In  the  absence  of  regu-  ' 
lation  by  statute,  the  protection  against  such  self-accusation  is 
secured  by  according  to  the  guilty  person,  when  called  upon  to 
answer  as  witness  or  otherwise,  the  privilege  of  then  avowing  the' 
liability  and  claiming  the  exemption;  instead  of  compelling  him 
to  answer  and  then  excluding  his  admissions  so  obtained,  when 
afterwards  offered  in  evidence  against  him.  This  branch  of  the 
constitutional  exemption  corresponds  with  the  common  law 
maxim,  nemo  tenetur  seipsum  accusare,  the  interpretation  and 
application  of  which  has  always  been  in  accordance  with  what  has 
been  just  stated.  Broom,  Legal  Maxims  (5th  ed.)  90S;  "Wingate,. 
Maxims,  486;  Boscoe,  Crim.  Ev.  (2d  Am.  ed.)  159;  Stark.  Ev_ 
(8th  Am.  ed.)  41,  201  and  notes;  1  Greenl.  Ev.  §  151  and  notes." 
The  opinion  then  cites  the  case  of  People  v.  Kelly,  21  X.  Y.  71, 
as  holding  that  the  clause  in  the  constitution  of  New  York  of 
ls40  protected  a  witness  from  being  compelled  to  answer  to 
matters  which  might  tend  to  criminate  himself,  when  called  to 
testify  against  another  party;  and  also  People  Y.Mather,  1  AVend. 
22'.».  as  declaring  that  the  exemption  in  the  constitution  of  New 
York  extended  to  the  disclosure  of  any  fact  which  might  consti- 
tute an  essential  link  in  a  chain  of  evidence  by  which  guilt  might 
he  established,  although  that  fact  alone  would  not  indicate  any 
crime. 

In  Cullen  v.  Com.  21  Graft.  621,  in  1873,  Cullen,  when  asked 
before  a  grand  jury  to  state  what  he  knew  of  a  certain  duel,  de- 
clined to  answer,  because  the  answer  would  tend  to  criminate  him. 
The  hustings  court  ordered  him    to  answTer,  and,  on   his   still 


PRIVILEGE    OF    WITNESSES.  307 

refusing  to  do  so,  fined  him  and  committed  him  to  jail.  The  case 
was  brought  before  the  court  of  appeals  of  Virginia.  The  bill  of 
rights  of  the  constitution  of  Virginia  of  1870,  in  §  10  of  article  1, 
provided  that  no  man  can  ''be  compelled  to  give  evidence  against 
himself."  That  provision  had  existed  in  the  bill  of  rights  of 
Virginia  as  far  back  as  June  12,  1776,  and  of  it  the  court  of 
appeals  said  it  was  the  purpose  of  its  trainers  ato  declare,  as  part 
of  the  organic  law,  that  no  man  should  anywhere,  before  any  tri- 
bunal, in  any  proceeding,  be  compelled  to  give  evidence  tending 
to  criminate  himself,  either  in  that  or  any  other  proceeding;"  and 
that  the  provision  could  not  be  confined  "only  to  cases  in  which 
a  man  is  called  on  to  give  evidence  himself  in  a  prosecution  pend- 
ing against  him." 

The  opinion  then  cited  People  v.  Kelly,  24  N".  Y.  71,  and 
Emery's  Case,107  Mass.  172,  as  sustaining  its  view,  and  proceeded 
to  consider  the  effect  of  an  act  of  Virginia,  passed  October  31, 
1870,  in  regard  to  dueling,  which  provided  as  follows  :  "Every 
person  who  may  have  been  the  bearer  of  such  challenge  or  accept- 
ance, or  otherwise  engaged  or  concerned  in  any  duel,  may  be  re- 
quired, in  any  prosecution  against  any  person  but  himself,  for 
having  fought,  or  aided,  or  abetted  in  such  duel,  to  testify  as  a 
witness  in  such  prosecution;  but  any  statement  made  by  such 
person,  as  such  witness,  shall  not  be  used  against  him  in  any 
prosecution  against  himself."  The  court  held  that  the  effect  of 
the  statute  was  to  invade  the  constitutional  right  of  the  citizen, 
and  to  deprive  the  witness  of  his  constitutional  right  to  refuse  to 
give  evidence  tending  to  criminate  himself,  without  indemnity, 
and  that  the  act  was,  therefore,  to  that  extent,  unconstitutional 
and  void.  It  was  held  further  that,  before  the  constitutional 
privilege  could  be  taken  away  by  the  legislature,  there  must  be 
absolute  indemnity  provided;  that  nothing  short  of  complete 
amnesty  to  the  witness,  an  absolute  wiping  out  of  the  offense  as 
to  him,  so  that  he  could  no  longer  be  prosecuted  for  it.  would 
furnish  that  indemnity;  that  the  statute  in  question  did  uot  fur- 
nish it,  but  only  provided  that  the  statement  made  by  the  witness 
should  not  be  used  against  him  in  a  prosecution  against  himself; 
that,  without  using  one  word  of  that  statement,  the  attorney  for 
the  commonwealth  might  in  many  cases,  and  in  a  case  like  that  in 
hand,  inevitably  would,  be  led  by  the  testimony  of  the  witness 
to  means  and  sources  of  information  which  might  result  in  crim- 


30S  LAW    OF    EVIDENCE    IN    CRIMINAL    CASES. 

mating  the  witness  himself;  and  that  this  would  he  to  deprive  the 
witness  of  his  privilege,  without  indemnity.  The  judgment  of 
the  hustings  court  was  reversed. 

Article  15  of  the  bill  of  rights  in  the  constitution  of  New  Hamp- 
shire of  1792  declared  that  no  subject  shall  "be  compelled  to  accuse 
or  furnish  evidence  against  himself."  In  State  v.  Newell,  58  N. 
H.  314,  in  1878,  Newell  refused  to  testify  before  a  grand  jury 
as  to  whether,  as  a  clerk  for  one  Goodwin,  he  had  sold  spirituous 
liquors,  and  whether  Goodwin  sold  them  or  kept  them  for  sale. 
He  declined  to  answer  on  the  ground  that  his  evidence  might 
tend  to  criminate  himself.  A  statute  of  the  state  (Gen.  Stat, 
chap.  99,  §  20)  provided  as  follows  :  "No  clerk,  servant,  or  agent 
of  am-  person  accused  of  a  violation  of  this  chapter,  shall  be  ex- 
cused from  testifying  against  his  principal,  for  the  reason  that  he 
may  thereby  criminate  himself;  but  no  testimony  so  given  by  him 
shall,  in  any  prosecution,  be  used  as  evidence,  either  directly  or 
indirectly  against  him,  nor  shall  he  be  thereafter  prosecuted  for 
any  offense  so  disclosed  by  him."  A  motion  having  been  made 
before  the  supreme  court  of  New  Hampshire,  for  an  attachment 
against  him  for  contempt  for  refusing  to  testify,  that  court,  after 
quoting  the  provision  in  the  bill  of  rights,  said  :  "The  common  law 
maxim  (thus  affirmed  by  the  bill  of  rights)  that  no  one  shall  be 
compelled  to  testify  to  his  own  criminality,  has  been  understood 
to  mean,  not  only  that  the  subject  shall  not  be  compelled  to  dis- 
close his  guilt  upon  a  trial  of  a  criminal  proceeding  against  him- 
self, but  also  that  he  shall  not  be  required  to  disclose,  on  the  trial 
of  issues  between  others,  facts  that  can  be  used  against  him  as 
admissions  tending  to  prove  his  guilt  of  any  crime  or  offense  of 
which  he  may  then  or  afterwards  be  charged,  or  the  sources  from 
which,  or  the  means  by  which,  evidence  of  its  commission,  or  of 
his  connection  with  it  may  be  obtained.  Emery's  Case,  107 
Mass.  172.  181." 

In  regard  to  the  statute,  the  court  said  that  the  legislature, 
having  undertaken  to  obtain  the  testimony  of  the  witness  without 
depriving  him  of  his  constitutional  privilege  of  protection,  must 
relieve  him  from  all  liabilities  on  account  of  the  matters  which  he 
is  compelled  to  disclose;  that  he  was  to  be  secured  against  all  lia- 
bility to  future  prosecution  as  effectually  as  if  he  were  wholly 
innocent;  that  this  would  not  be  accomplished  if  he  were  left  lia- 
ble U>  prosecution  criminally  for  any  matter  in  respect  to  which 


PRIVILEGE   OF   WITNESSES.  309 

he  might  be  required  to  testify;  that  the  statute  of  New  Hamp- 
shire went  further  than  the  statute  of  Massachusetts  considered  in 
Emery's  case,  because  it  provided  that  the  witness  should  not  b*e 
thereafter  prosecuted  for  any  offense  so  disclosed  by  him;  that  the 
witness  had,  under  the  statute,  all  the  protection  which  the  com- 
mon law  right,  adopted  by  the  bill  of  rights  in  its  common  law 
sense,  gave  him;  that  if  he  should  be  prosecuted,  a  plea  that  he 
had  disclosed  the  same  offense  on  a  lawful  accusation  against  his 
principal  would  be  a  perfect  answer  in  bar  or  abatement  of  the 
prosecution  against  himself;  and  that,  unless  he  should  testify,  the 
motion  for  the  attachment  must  be  granted. 

In  1880,  in  LaFontaine  v.  Southern  Underwriters  Asso.  83  N. 
C.  132,  the  constitution  of  North  Carolina  of  1876  had  provided^ 
in  the  declaration  of  lights  (art.  1,  §  11)  that,  "in  all  criminal 
prosecutions,  every  man  has  the  right  .  .  .  to  .  .  .  not 
be  compelled  to  give  evidence  against  himself."  One  Blacknall, 
as  a  witness  in  a  hearing  before  a  referee  in  a  civil  suit,  had 
refused  to  answer  a  question  as  to  his  possession  of  certain  books, 
on  the  ground  that  indictments  were  pending  against  him,  con- 
nected with  the  management  of  the  affairs  of  the  association  own- 
ing the  books,  and  that  his  answer  to  the  question  might  tend  to 
criminate  him.  The  case  was  heard  before  an  inferior  state  court, 
which  ruled  that  he  must  answer  the  question.  On  appeal  to  the 
supreme  court  of  North  Carolina,  it  is  held  that  the  fair  interpre- 
tation of  the  constitutional  provision  was  to  secure  a  person,  who 
was  or  might  be,  accused  of  crime,  from  making  any  compulsory 
revelations  which  might  be  used  in  evidence  against  him  on  his 
trial  for  the  offense,  that,  as  the  witness  was  protected  from  the 
consequences  of  the  discovery,  and  the  facts  elicited  could  be 
given  in  evidence  in  no  criminal  prosecution  to  which  they  were 
pertinent,  the  plaintiff  in  the  case  was  entitled  to  all  the  informa- 
tion which  the  witness  possessed,  whether  it  did  or  did  not  impli- 
cate the  witness  in  a  fraudulent  transaction,  that  the  inquiry  could 
not  be  evaded  upon  any  ground  of  the  self-criminating  answer 
which  might  follow,  although  the  answers  of  the  witness  could 
not   be   used   against   him    in    any    criminal    proceeding     what, 

ever;  and  that  his  constitutional  right  not  to  "be  <• pelled  to 

give  evidence  against  himself"  would  be  maintained  intact  and 
full. 

In   Temple  v.  Com.  75  Va.  892,  in  1881,  the  same  §  10  of 


310  LAW    OF    EVIDENCE    IN    CKIMINAL    CASES. 

article  1  of  the  bill  of  rights  of  the  constitution  of  Virginia  of 
1870,  that  was  considered  in  Cullen  v.  Com.  24  Gratt.  624,  was  in 
force.  An  indictment  had  been  found  by  a  grand  jury,  on  the 
evidence  of  Temple,  against  one  Berry  for  setting  up  a  lottery. 
On  the  trial  of  Berry  before  the  petit  jury,  Temple  refused  to  tes- 
tify, on  the  ground  that  by  so  doing  he  would  criminate  himself; 
and  for  such  refusal  he  was  fined  and  imprisoned  for  contempt  by 
the  hustings  court.  The  case  was  taken  to  -the  court  of  appeals 
by  writ  of  error.  The  court  cited  with  approval  Cullen  v.  Com. 
siqyra,  and  held  that  it  was  applicable.  It  appeared  that  in  the 
hustings  court,  the  attorney  for  the  commonwealth  was  asked 
whether  any  prosecution  was  pending  against  Temple  in  that  court 
or  whether  it  was  the  intention  of  such  attorney  to  institute  a  pro- 
ceeding against  Temple  for  being  concerned  in  a  lottery,  to  both 
of  which  questions  he  replied  in  the  negative. 

The  court  of  appeals  held  that  Temple  had  a  right  to  stand  upon 
his  constitutional  privilege,  and  not  to  trust  to  the  chances  of  a 
further  prosecution;  that  the  court  could  offer  him  no  indemnity 
that  he  would  not  be  further  prosecuted,  nor  could  the  attorney 
for  the  commonwealth;  that  Temple  had  a  right  to  remain  silent 
whenever  any  question  was  asked  him,  the  answer  to  which  might 
tend  to  criminate  himself;  that  the  great  weight  of  authority  in 
the  United  States  was  in  favor  of  the  rule  that,  when  a  witness  on 
oath  declared  his  belief  that  his  answer  would  tend  to  criminate 
himself,  the  court  could  not  compel  him  to  answer,  unless  it  was 
perfectly  clear,  from  a  careful  consideration  of  all  the  circum- 
stances in  the  case,  that  the  witness  was  mistaken,  and  that  the 
answer  could  not  possibly  have  such  a  tendency. 

In  Boyd  v.  United  States,  116  U.  S.  616,  29  L.  ed.  746,  in  1886, 
the  court,  in  considering  the  4th  and  5th  amendments  to  the 
Constitution  of  the  United  States,  which  declares  that  no  person 
"shall  be  compelled  in  any  criminal  case  to  be  a  witness  against 
himself,"  and  the  4th  Amendment,  which  declares  that  the  right 
of  the  people  to  be  secure  in  their  persons,  houses,  papers,  and 
effects,  against  unreasonable  searches  and  seizures,  shall  not  be 
violated,  said,  speaking  by  Mr.  Justice  Bradley,  p.  631  [751]: 
"And  any  compulsory  discovery  by  extorting  the  party's  oath,  or 
compelling  the  production  of  his  private  books  and  papers,  to  con- 
vict him  of  crime,  or  to  forfeit  his  property,  is  contrary  to  the 
principles  of  a  free  government.     It  is  abhorrent  to  the  instincts 


PKIVILEGE    OF    WITNESSES.  311 

of  an  Englishman;  it  is  abhorrent  to  the  instincts  of  an  American. 
It  may  suit  the  purposes  of  despotic  power;  but  it  cannot  abide 
the  pure  atmosphere  of  political  liberty  and  personal  freedom." 
It  was  further  said,  p.  633  [752]:  "We  have  already  noticed  the 
intimate  relation  between  the  two  amendments.  They  throw 
great  light  on  each  other.  For  the  'unreasonable  searches  and 
seizures'  condemned  in  the  4th  Amendment  are  almost  always 
made  for  the  purpose  of  compelling  a  man  to  give  evidence 
against  himself,  which  in  criminal  cases  is  condemned  in  the  5th 
Amendment,  and  compelling  a  man  'in  a  criminal  case  to  be 
a  witness  against  himself,'  which  is  condemned  in  the  5th 
Amendment,  throws  light  on  the  question  as  to  what  is  an  'unrea- 
sonable search  and  seizure,'  within  the  meaning  of  the  4th  Amend- 
ment. And  we  have  been  unable  to  perceive  that  the  seizure  of 
a  man's  private  books  and  papers  to  be  used  in  evidence  against 
him  is  substantially  different  from  compelling  him  to  be  a  witness 
against  himself.  We  think  it  is  within  the  clear  intent  and  mean- 
ing of  those  terms.  .  .  .  As,  therefore,  suits  for  penalties  and 
forfeitures  incurred  by  the  commission  of  offenses  against  the  law, 
are  of  this  quasi  criminal  nature,  we  think  that  they  are  within 
the  reason  of  criminal  proceedings  for  all  the  purposes  of  the  4th 
Amendment  of  the  Constitution,  and  of  that  portion  of  the  5th 
Amendment  which  declares  that  no  person  shall  be  compelled  in 
any  criminal  case  to  be  a  witness  against  himself;  and  we  are 
further  of  opinion  that  a  compulsory  production  of  the  private 
books  and  papers  of  the  owner  of  goods  sought  to  be  forfeited  in 
such  a  suit  is  compelling  him  to  be  a  witness  against  himself,  with- 
in the  meaning  of  the  5th  Amendment  to  the  constitution,  and  is 
the  equivalent  of  a  search  and  seizure — and  an  unreasonable  search 
and  seizure — within  the  meaning  of  the  4th  Amendment.  Though 
the  proceeding  in  question  is  divested  of  many  of  the  aggravating 
incidents  of  actual  search  and  seizure,  yet,  as  before  said,  it  con- 
tains their  substance  and  essence,  and  effects  their  substantial  pur- 
pose. It  may  be  that  it  is  the  obnoxious  thing  in  its  mildest  and 
least  repulsive  form;  but  illegitimate  and  unconstitutional  prac- 
tices get  their  first  footing  in  that  way,  namely,  by  silent  approaches 
and  slight  deviations  from  legal  modes  of  procedure.  This  can 
only  be  obviated  by  adhering  to  the  rule  that  constitutional  pro- 
visions for  the  security  of  person  and  property  should  be  liberally 
construed.     A  close  and  literal  construction  deprives  them  of  half 


312  LAW    OF    EVIDENCE    IN    CRIMINAL   CASES. 

their  efficacy,  and  leads  to  gradual  depreciation  of  the  right,  as  if 
it  consisted  more  in  sound  than  in  substance.  It  is  the  duty  of 
courts  to  be  watchful  for  the  constitutional  rights  of  the  citizen, 
and  against  any  stealthy  encroachments  thereon.  Their  motto 
should  be  obsta  principiis." 

In  that  case,  the  fifth  section  of  the  Act  of  June  22,  1874  (18 
Stat,  at  L.  187)  which  authorized  the  court  in  revenue  cases  to- 
require  the  defendant  or  claimant  to  produce  his  private  papers- 
in  court,  or  else  the  allegations  of  the  government's  attorney 
would  be  taken  as  confessed,  was  held  to  be  unconstitutional  and 
void,  as  applied  to  a  suit  for  a  penalty  or  to  establish  a  forfeiture 
of  the  goods  of  the  party,  because  it  was  repugnant  to  the  4th  and 
5th  amendments  to  the  Constitution;  and  it  was  held  that  a  pro- 
ceeding to  forfeit  the  goods  was  a  criminal  case  within  the  mean- 
ing of  the  5th  Amendment.  Mr.  Justice  Miller,  in  the  concurring 
opinion  of  himself  and  Chief  Justice  Waite  in  the  case,  agreed 
that  it  was  a  criminal  one,  within  the  meaning  of  the  5th  Amend- 
ment, and  that  the  effect  of  the  Act  of  Congress  was  to  compel 
the  party  on  whom  the  order  of  the  court  was  served,  to  be  a. 
witness  against  himself. 

In  People  v.  Sharp,  107  K  T.  427,  in  1887,  the  court  of 
appeals  of  New  York  had  under  consideration  the  provision  of 
Article  1,  §  G,  of  the  Constitution  of  New  York  of  1840,  that  no 
person  shall  "be  compelled,  in  any  criminal  case,  to  be  a  witness 
against  himself,"  and  the  provision  of  section  79  of  the  penal 
code  of  New  York,  title  8,  chapter  1,  in  regard  to  bribery  and 
corruption,  which  was  in  these  words :  "A  person  offending 
against  any  provision  of  any  foregoing  section  of  this  code  relat- 
ing to  bribery,  is  a  competent  witness  against  another  person  SO' 
offending,  and  may  be  compelled  to  attend  and  testify  upon  any 
trial,  hearing,  proceeding,  or  investigation,  in  the  same  manner  as- 
any  other  person.  But  the  testimony  so  given  shall  not  be  used 
in  any  prosecution  or  proceeding,  civil  or  criminal,  against  the 
person  so  testifying.  A  person  so  testifying  to  the  giving  of  a 
bribe  which  has  been  accepted,  shall  not  thereafter  be  liable  to 
indictment,  prosecution,  or  punishment  for  that  bribery,  and  may 
plead  or  prove  the  giving  of  testimony  accordingly,  in  bar  of  such 
an  indictment  of  prosecution."  Sharp  and  others  were  indicted 
for  bribing  a  member  of  the  common  council,  and  Sharp  was  tried 
separately.     It  was  proved  that  he  had  been  examined  as  a  wit- 


PRIVILEGE    OF    WITNESSES.  313- 

ness  before  a  committee  of  the  state  senate,  and  there  gave  testi- 
mony of  his  complicity  in  the  crime;  and  that  testimony  was- 
offered  in  evidence  by  the  prosecution.  The  testimony  had  been 
given  under  the  compulsion  of  a  subpoena,  and  was  admitted  at 
the  trial,  against  the  objection  that  the  disclosures  before  the  sen- 
ate committee  were  privileged.  The  court  of  appeals  held  that 
§  79  of  the  penal  code  made  the  constitutional  privilege  inappli- 
cable, because  it  indemnified  or  protected  the  party  against  the 
consequences  of  his  previous  testimony.  The  court  cited  with 
approval  the  case  pf  People  v.  Kelly,  24  N.  Y.  74. 

In  Bedgood  v.  State,  115  Ind.  275,  in  18S8,  the  supreme  court 
of  Indiana  had  under  consideration  the  provision  of  art.  1,  §  14  of 
the  bill  of  rights  of  the  constitution  of  Indiana  of  1851,  which 
provides  that  "no  person  in  any  criminal  prosecution  shall  be 
compelled  to  testify  against  himself,"  and  the  provisions  of 
§  1800  of  the  revised  statutes  of  Indiana  of  1881,  to  the  effect 
that  testimony  given  by  a  witness  should  not  be  used  in  any 
prosecution  against  him.  On  a  trial  before  a  petit  jury  in  a. 
criminal  case  against  others,  a  woman  had  refused  to  answer  a 
question,  on  the  ground  that  the  answer  might  criminate  her. 
The  supreme  court  held  that,  as  the  statute  prohibited  her  testi- 
mony from  being  used  against  her,  it  completely  protected  her, 
and  the  judgment  was  reversed  because  the  trial  court  had  erro- 
neously refused  to  require  her  to  answer  the  question. 

This  review  of  the  cases  shows  that  in  the  constitution  of  Geor- 
gia, California,  and  New  York,  the  provision  is  identically  or 
substantially  that  of  the  Constitution  of  the  United  States,  namely, 
that  no  person  shall  "be  compelled  in  any  criminal  case  to  be  a 
witness  against  himself;"  while  in  the  constitution  of  Pennsylva- 
nia, Arkansas,  Indiana,  Massachusetts,  Virginia,  New  Hampshire, 
and  North  Carolina  it  is  different  in  language,  and  to  the  effect 
that  "no  man  can  be  compelled  to  give  evidence  against  himself;" 
or  that,  in  prosecutions,  the  accused  "shall  not  be  compelled  to 
give  evidence  against  himself;"  or  that  "no  person  in  any  criminal 
prosecution  shall  be  compelled  to  testify  against  himself,"  or  that 
no  person  shall  be  "compelled  to  accuse  or  furnish  evidence 
against  himself;"  or  that  no  man  can  "be  compelled  to  give  evi- 
denceagainst  himself;"  or  that,  in  all  criminal  prosecutions,  "every 
man  has  the  right  to  not  be  compelled  to  give  evidence  against 
himself." 


■314  LAW  OF    EVIDENCE    IN    CRIMINAL    CASES. 

Under  the  constitutions  of  Arkansas,  Georgia,  California,  Indi- 
ana, New  York,  New  Hampshire,  and  North  Carolina  it  was  held 
that  a  given  statutory  provision  made  it  lawful  to  compel  a  wit- 
ness to  testify;  while  in  Massachusetts  and  Virginia  it  was  held 
that  the  statutory  provisions  were  inadequate  in  view  of  the  con- 
stitutional provision.  In  New  Hampshire,  and  in  New  York 
under  the  penal  code,  it  was  held  that  the  statutory  provisions 
were  sufficient  to  supply  the  place  of  the  constitutional  provision, 
because,  by  statute,  the  witness  was  entirely  relieved  from  prose- 
cution. 

But,  as  the  manifest  purpose  of  the  constitutional  provisions, 
"both  of  the  states  and  of  the  United  States,  is  to  prohibit  the 
compelling  of  testimony  of  a  self-criminating  kind  from  a  party 
or  a  witness,  the  liberal  construction  which  must  be  placed  upon 
constitutional  provisions  for  the  protection  of  personal  rights 
would  seem  to  require  that  the  constitutional  guaranties,  however 
differently  worded,  should  have  as  far  as  possible  the  same  inter- 
pretation; and  that  where  the  constitution,  as  in  the  cases  of  Mas- 
sachusetts and  New  Hampshire,  declares  that  the  subject  shall  not 
be  "compelled  to  accuse  or  furnish  evidence  against  himself;" 
■such  a  provision  should  not  have  a  different  interpretation  from 
that  which  belongs  to  constitutions  like  those  of  the  United  States 
and  of  New  York,  which  declare  that  no  person  shall  be  "com- 
pelled in  any  criminal  case  to  be  a  witness  against  himself." 

§208.  The  Privilege  of  Attorneys. — The  rule  of  privileged 
•communications  as  applied  to  the  relation  of  attorney  and  client 
in  civil  matters,  is  substantially  the  same  as  in  the  administration 
of  criminal  justice.  Whether  the  protection  can  be  removed 
without  the  client's  consent  in  cases  in  which  the  interest  of 
criminal  justice  requires  the  production  of  the  evidence  may  ad- 
mit of  some  doubt.  Hageman,  Privileged  Communications, 
§  252,  citing  Taylor,  Ev.  §  029;  Reg.  v.  Tykiey,  18  L.  J.  M.  C. 
37;  Reg.  v.  Tufts,  1  Den.  C.  C.  319. 

A  paragraph  from  Judge  Cooley  is  pertinent  in  this  connec- 
tion : 

"  In  guaranteeing  to  parties  accused  of  crime  the  right  to  the  aid 
of  counsel,  the  Constitution  secures  it  with  all  its  accustomed  in- 
cidents. Among  these  is  that  shield  of  protection  which  is  thrown 
around  the  confidence  the  relation  of  counsel  and  client  requires, 
and  which  does  not  permit  the  disclosure  by  the  former,  even  in 


PRIVILEGE    OF   WITNESSES.  315 

"the  courts  of  justice,  of  communications  which  may  have  been 
made  to  him  by  the  latter,  with  a  view  to  pending  or  anticipated 
litigation.  This  is  the  client's  privilege;  the  counsel  cannot  waive 
it;  and  the  court  would  not  permit  the  disclosure  even  if  the  cli- 
ent were  not  present  to  take  the  objection."  Cooley,  Const.  Lim. 
<6th  ed.)  407. 

In  the  case  of  Tichhorne  v.  Lushington,  Shorthand  Notes,  p. 
5211,  out  of  which  the  prosecution  of  Orton  for  perjury  arose, 
Bovill,  Ch.  </.,  at  the  close  of  the  case  said:  "I  believe  the  law  is, 
and  properly  is,  that  if  a  party  consults  an  attorney,  and  obtains 
advice  for  what  afterwards  turns  out  to  be  the  commission  of  a 
crime  or  a  fraud,  that  party  so  consulting  the  attorney  has  no 
privilege  whatever  to  close  the  lips  of  the  attorney  from  stating 
the  truth.  Indeed,  if  any  such  privilege  should  be  contended  for 
•or  existed,  it  would  work  most  grievous  hardships  on  an  attorney, 
who,  after  he  had  been  consulted  on  what  subsequently  appeared 
to  be  a  manifest  crime  and  fraud,  would  have  his  lips  closed,  and 
might  place  him  in  a  very  serious  position  of  being  suspected  to 
be  a  party  to  the  fraud,  and  without  his  having  an  opportunity  of 
•exculpating  himself.  .  .  .  There  is  no  privilege  in  the  case 
which  I  have  suggested,  of  a  party  consulting  another,  a  profes- 
sional man,  as  to  what  may  afterwards  turn  out  to  be  a  crime  or 
fraud,  and  the  best  mode  of  accomplishing  it."  Reg.  v.  Cox,  L. 
E.  14  Q.  B.  Div.  153. 

In  order  that  the  rule  may  apply  there  must  be  both  profes- 
sional confidence  and  professional  employment;  but  if  the  client 
has  a  criminal  object  in  view  in  his  communications  with  his  so- 
licitor, one  of  these  elements  must  necessarily  be  absent.  The 
•client  must  either  conspire  with  his  solicitor  or  deceive  him.  If 
his  criminal  object  is  avowed,  the  client  does  not  consult  his  ad- 
visor professionally,  because  it  cannot  be  the  solicitor's  business 
to  further  any  criminal  object.  If  the  client  does  not  avow  his 
object,  he  reposes  no  confidence,  for  the  state  of  facts  which  is 
the  foundation  of  the  supposed  confidence  does  not  exist.  The 
solicitor's  advice  is  obtained  by  a  fraud.      Reg  v.  Oox,  supra. 

The  only  thing  which  we  feel  authorized  to  say  upon  this  mat- 
ter is,  that  in  each  particular  case  the  court  must  determine  upon 
the  facts  actually  given  in  evidence  or  proposed  to  be  given  in 
evidence  whether  it  seems  probable  that  the  accused  person  may 
have  consulted  his  legal  advisor,  not  after  the  commission  of  the 


310  LAW    OF    EVIDENCE    IN    CRIMINAL    CASES. 

crime  for  the  legitimate  purpose  of  being  defended,  but  before- 
the  commission  of  the  crime  for  the  purpose  of  being  guided  or 
helped  in  committing  it.  We  are  far  from  saying  that  the  ques- 
tion, whether  the  advice  was  taken  before  or  after  the  offense, 
will  always  be  decisive  as  to  the  admissibility  of  such  evidence. 
Courts  must  in  every  instance  judge  for  themselves  on  the  special 
facts  of  each  particular  case,  just  as  they  must  judge  whether  a 
witness  deserves  to  be  examined  on  the  supposition  that  he  is  hos- 
tile, or  whether  a  dying  declaration  was  made  in  the  immediate 
prospect  of  death,     lieg.  v.  Cox,  supra. 

Judge  Cooley  says  that  'k it  has  been  intimated  in  ISew  York 
that  the  statute  making  parties  witnesses  has  done  away  with  the 
rule  which  protects  professional  communications.  MitoheWs- 
Case,  12  Abb.  Pr.  249;  note  to  1  Phil.  Ev.  by  Cowen,  Hill  & 
Edwards,  159.  Supposing  this  to  be  so  in  civil  cases,  the  protec- 
tion would  still  be  the  same  in  the  case  of  persons  charged  with 
crime,  for  such  persons  cannot  be  compelled  to  give  evidence 
against  themselves,  so  that  the  reason  for  protecting  professional 
confidence  is  the  same  as  formerly."  Cooley's  Const.  Lim.  (Gth 
ed.)  408. 

The  competency  of  attorneys  and  counsel  to  testify  as  to  com- 
munications made  to  them,  and  matters  that  they  have  learned  in 
the  course  of  their  professional  employment,  has  been  extensively 
discussed  by  the  courts  of  the  state,  and  the  cases  involving  that 
question  thoroughly  examined.  Whiting  v.  Barney,  30  N.  T. 
330;  Coveney  v.  Tannahill,  1  Hill,  33;  Bank  of  JJtica  v.  Mer- 
st  /■<  'in,  3  Barb.  Ch.  533.  The  rule  deducible  from  the  authorities 
is,  that  all  communications  made  by  a  client  to  his  counsel,  for 
the  purposes  of  professional  advice  or  assistance,  are  privileged, 
whether  such  advice  relates  to  a  suit  pending,  one  contemplated, 
or  to  any  other  matter  proper  for  such  advice  or  aid;  that,  where 
the  communications  are  made  in  the  presence  of  all  the  parties 
to  the  controversy,  they  are  not  privileged,  but  the  evidence  is 
competent  between  such  parties.  Maxham  v.  Place,  46  Yt.  434; 
Graham  v.  People,  63  Barb.  46S;  Bowers  v.  State,  29  Ohio  St.. 
54  -1\  Jenhmson  v.  State,  5  Blackf.  465;  March  v.  Ludlian,  3 
Sandf.  Ch.  45;  Whiting  v.  Barney,  supra;  Crosby  v.  Berger,  11 
Paige,  377;  Orion  v.  McCord,  33  Wis.  205;  Chahoon  v.  Com.  21 
Graft.  822;  State  v.  Hazleton,  15  La.  Ann.  72. 

The  immunities  that  surround  the  communications  between, 


PRIVILEGE    OF    WITNESSES.  317 

lawyer  and  client,  are  all  dissolved  should  it  appear"  that  the  com- 
munication was  in  furtherance  of  an  illegal  object. 

When  an  attorney  prostitutes  the  privileges  of  his  high  calling 
to  base  and  dishonest  ends  with  the  connivance  and  assistance  of 
his  clients  the  law  very  properly  withdraws  its  fostering  care  and 
protection  from  the  disclosures  they  may  make  and  they  both 
stand  before  the  court  as  criminals,  deprived  of  any  right  to 
evoke  the  protection  that  is  always  the  privilege  of  honest  men. 

§  209.  The  Privilege  of  Physicians. — The  statutory  law  of 
]STew  York  from  a  very  early  period  has  extended  the  same  pro- 
tection that  may  be  invoked  between  attorney  and  client  to  the 
relations  that  subsist  between  physician  and  patient. 

At  common  law,  the  information  obtained  by  physicians  in  their 
professional  intercourse  with  patients  was  not  privileged  from 
disclosure.  The  "information,"  of  which  the  statute  forbids  the 
disclosure,  is  not  confined  to  communications  made  by  the  patient, 
but  extends  to  all  facts  which  necessarily  come  to  the  knowledge 
of  the  physician  in  a  professional  case.  The  statute  is  for  the 
protection  of  the  patient  and  not  the  physician,  and  being  of  a 
remedial  nature,  it  should  be  construed  liberally  and  with  refer- 
ence to  the  evil  it  was  designed  to  remedy.  To  bring  a  case  within 
the  protection  of  the  statute  it  is  not  necessary  that  the  technical 
relation  of  physician  and  patient  should  exist;  but  the  statute  is 
applicable  where  a  physician  has  attended  upon  a  person  under 
circumstances  calculated  to  induce  the  opinion  that  his  visit  was 
of  a  professional  nature,  and  the  visit  was  so  regarded  and  acted 
upon  by  the  person  so  attended.  People  v.  Stout,  3  Park.  Crim. 
Kep.  670. 

The  statutory  provision  above  referred  to  ultimately  crystalized 
in  §  834  of  the  New  York  code  of  civil  procedure  which  is  framed 
in  the  following  language:  "A  person,  duly  authorized  to  practice 
physic  or  surgery,  shall  not  be  allowed  to  disclose'any  information 
which  he  acquired  in  attending  a  patient,  in  a  professional  capaci- 
ty, and  which  was  necessary  to  enable  him  to  act  in  that  capacity." 

Under  this  provision  it  was  held  that  the  burden  of  proof  is 
upon  the  defendant  to  show,  and  that  in  the  first  instance,  that 
the  technical  relation  of  physician  and  patient  existed  between 
these  parties.  Cary  v.  White,  50  N.  Y.  339;  Steele  v.  Ward,  30 
Hun,  500;  Edington  v.  JEtncs  L.  Ins.  Co.  77  K  Y.  5(54. 

When  a  party  seeks  to  exclude  evidence  under  this  section  the 


318  LAW     OF    EVIDENCE    IN    CRIMINAL   CASES. 

burden  is  upon  him  to  bring  the  case  within  its  purview.  He- 
must  make  it  appear,  if  it  does  not  otherwise  appear,  that  the- 
information  which  he  seeks  to  exclude  was  such  as  the  witness- 
acquired  in  attending  the  patient  in  a  professional  capacity  not 
only,  but  he  must  also  show  that  it  was  such  as  was  necessary  to 
enable  him  to  act  in  that  capacity.  Edington  v.  JEtna  L.  Ins. 
Co.  77  N.  Y.  564. 

The  object  of  the  statute  is  plainly  this,  that  persons  may  feel 
sure  that  whatever  they  disclose  to  a  physician,  in  his  professional 
capacity,  in  regard  to  the  bodily  condition,  whether  it  be  byword. 
or  by  all  owing  a  physical  examination,  shall  be  held  sacred.  It 
matters  not  whether  the  patient  or  some  one  else  pays  the  doctor's 
bill,  or  whether  it  is  ever  paid  at  all.  And  it  matters  not  whether 
the  patient  visits  the  physician  to  relieve  his  own  anxiety,  or  to 
relieve  that  of  some  friend.  The  information  which  he  thus 
enables  the  physician  to  acquire  is  protected.  Nor  does  it  make 
any  difference  that  no  prescription  is  made.  Grattan  v.  Metro- 
politan /..  Ins.  Co.  si i  N.  Y.  281,  30  Am.  Rep.  617. 

§  210.  The  Privilege  of*  Clergymen. — "A  clergyman,  or  other 
minister  of  any  religion,  shall  not  be  allowed  to  disclose  a  con- 
fession  made  to  him.  in  his  professional  character,in  the  course  of 
discipline,  enjoined  by  the  rules  or  practice  of  the  religious  body, 
to  which  he  belong,/'     K  Y.  Code  Civ.  Proc.  §  S33. 

This  rule  very  generally  obtains  both  in  this  country  and  in 
England.  Butler  v.  Moore,  decided  in  1802  by  the  Irish  Master 
of  the  Rolls  I  Sir  Michael  Smith)  and  cited  in  McJSally's  Evidence, 
253,  254     See  also  Broad  v.  Pitt,  3  Car.  &  P.  51S. 

The  contra  view  is  stated  in  note  11  of  Stephen's  Digest  of  the 
Eaw  of  Evidence. 

For  an  extended  review  of  this  entire  subject  see  2  Rice,  Civil 
Evidence,  chap.  XX. 


CHAPTER   XXXI. 
THE  EXAMINATION  OF  WITNESSES. 

§  211.  Method  Discretionary  with  the  Trial  Court. 

212.  Strict  Mode  of  Procedure  Seldom  Pursued. 

213.  Witness  must  Testify  to  Facts  Within  his  Knowledge. 

214.  Examination  in  Chief —  Views  of  Prominent  Text    Writers*. 

215.  Object  of  the  Examination  in  Chief. 

216.  Rule  as  to  Leading  Questions. 

217.  No  Material  Fad  in  Issue  can  be  Assumed  on  Examination. 

218.  Nature    and  Scope  of  the  Rebuttal  Evidence   in   Criminal 

Cases. 

219.  The  Cross-examination. 

a.  Rule  as  to  Hostile  Witnesses. 

b.  Confined  to  Relevant  Furls. 

c.  When  Party  Makes  Witness  his  Own. 

d.  Rule  as  to  Collateral  Matters. 

e.  Duty  of  the  Court  to  Protect  the  Witness. 

f.  Cross-examination  during  Absence  of  the  Accused. 

g.  Recalling  Witness. 

h.    Views  of  Sir  James  Stephen. 

i.    Cause  for  Remembering  Certain  Facts. 

j.    The  English  Rule. 

220.  Importance  of  Cross-examination. 

221.  Extent  of  the  Cross-examination. 

222.  When  Answer  is  Conclusive. 

223.  Cross-examination  of  Defendant  in  His  Own  Behalf. 

224.  Testimony  of  Witness  since  Deceased,  (liven  on  Former  Trial. 

225.  Testimony  of  the  Accused  on  his  Preliminary  Examination. 

226.  Summary  of  the  Views  here  Slated. 

§  211.  Method  Discretionary  with  the  Trial  Court- 
Witnesses  examined  in  open  court  are  usually  first  examined  in 
chief,  then  cross-examined,  and  then  re-examined. 

But  under  modern  methods,  ir  is  largely  a  matter  of  discretion 
with  the  court,  to  what  extent  the  examination  shall  continue  and 
in  what  order  the  evidence  shall  be  produced.  Duncan  v.  Mc- 
Gullough,  4  Serg.  &  R.  480;  Adriance  v.  Arnot,  31  Mo.  171; 
Stewart  v.  People,  23  Mich.  63,  9  Am.  Rep.  78;  Com.  v.  Lyden, 

319 


■32U  LAW    OF    EVIDENCE    IN    CRIMINAL    OASES. 

113  Mass.  1:52;  MulhoUin  v.  State,  7  Ind.  646;  State  v.  &»#,  80 
N.  C.  365;  Carney  v.  Sfofe,  79  Ala.  14. 

g  212.  Strict  31  ode  of  Procedure  Seldom  Pursued.— The 

strict  mode  of  procedure  is  scarcely  ever  pursued  in  active  prac- 
tice. The  office  of  a  direct  examination,  or  examination  in  chief 
as  it  is  also  termed,  is  to  lay  before  the  court  and  the  jury,  the 
whole  of  the  evidence  of  the  witness  that  is  relevant  and  material. 
The  office  of  a  re-examination  is  to  explain,  to  rectify  and  put  in 
order  such  matters  as  have  been  affected  by  the  cross-examination. 
The  examination  of  a  single  witness  is  an  illustration  of  the  man- 
ner of  conducting  the  examination  of  all  the  witnesses  in  the 
cause.  If  the  strict  rules  of  examination  are  followed,  the  party 
who  produces  a  witness  is  bound  to  ask  all  material  questions  on 
the  direct  examination,  and  if  this  is  omitted  it  cannot  be  done  in 
reply,  for  no  new  question  can  be  put  in  reply  which  is  not  con- 
nected with  the  cross-examination  and  which  does  not  tend  to 
explain  ir.  Ford  v.  Niles,  1  Hill,  300;  Caldwell  v.  New  Jersey 
S.  B.  <  'o.  17  N.  V.  282;  Meyer  v.  Goedel,  31  How.  Pr.  456;  An- 
thony y.  Smith,  4:  Bosw.  503;  Shepard  v.  Potter,  4  Hill,  202; 
Hastings  v.  Palmer,  20  "Wend.  225;  Leland  v.  Bennett,  5  Hill, 
286;  Romi  rtze  v.  East  Riv<  r  Nat.  Bank,  2  Sweeny,  82;  Seibert  v. 
Allen,  ''.1  Mo.  482;  Ober  v.  Carson,  02  Mo.  209. 

A.s  a  genera]  rule,  leading  questions  are  not  permitted  upon  a 
direct  examination  {People  v.  Oyer  tfc  Terminer  Ct.  S3  N.  Y. 
436,  459,  460);  but  the  rule  is  relaxed  where  an  omission  of  the 
witness's  testimony  is  evidently  caused  by  a  want  of  recollection 
which  a  suggestion  may  assist.  Cheeny  v.  Arnold,  18  Barb.  434. 
See  CHagan  v.  Dillon,  76  JSr.  Y.  170.  Or,  where  the  witness 
is  hostile  to  the  party  calling  him  (  Williams  v.  Eldridge,  1  Hill, 
249  255;  Third  Great  Western  Tump.  R.  Co.  v.  Loom/is,  32  K 
V.  L27-139;  Bradshaw  v.  Corahs,  102  111.  42S),  or  very  ignorant 
/>  'an  v.  Mullen,  78  111.  342;  State  v.  Benner,  64 Me.  267);  and 
questions,  though  leading  in  form,  are  always  competent,  when 
merely  intended  to  direct  the  attention  of  the  witness  to  the  sub- 
ject-matter of  his  testimony.     Lowe  v.  Lowe,  40  Iowa,  220. 

Where  the  question  asked  is  of  doubtful  propriety  and  yet  it  is 
apparent  that  under  a  particular  view  of  the  case  it  may  be  rele- 
vant the  opposing  counsel  or  the  court  may  demand  a  statement 
of  what  it  is  proposed  to  prove  and  in  what  way  its  relevancy  to 
the  issue  may  be  shown.      Wood  v.  State,  92  Ind.  269. 


THE    EXAMINATION    OF    WITNESSES.  321 

No  witness  can  be  heard  except  upon  oath  or  affirmation;  and 
upon  a  trial  he  can  be  heard  only  in  the  presence  and  subject  to 
the  examination  of  all  the  parties,  if  they  so  elect. 

§  213.  Witness  Must  Testify  to  Facts  Within  his  Knowl- 
edge.— No  principle  is  better  settled  than  that  the  belief,  thoughts 
or  operation  of  the  mind  of  a  witness  are  not  admissible  evidence, 
.as  a  general  rule.  He  must  testify  only  as  to  facts  within  his 
knowledge,  and  cannot  give  evidence  outside  of  this,  unless  a  case 
is  made  out  where  his  opinion  may  be  asked.  Abbott  v.  People, 
st;  \.  Y.  460;  Gutchess  v.  Outchess,  66  Barb.  483;  Rich  v.  Jak- 
way,  18  Barb.  357;  Morehouse  v.  Mathews,  2  X.  Y.  514;  Gibson 
v.   Williams,  4  Wend.  320. 

Generally  oral  evidence  must  in  all  cases  whatever,  be  direct ; 
that  is  to  say — 

If  it  refers  to  a  fact  alleged  to  have  been  seen,  it  must  be  the 
evidence  of  a  witness  who  says  he  saw  it; 

If  it  refers  to  a  fact  alleged  to  have  been  heard,  it  must  be  the 
evidence  of  a  witness  who  says  he  heard  it; 

If  it  refers  to  a  fact  alleged  to  have  been  perceived  by  any 
other  sense  or  in  any  other  manner,  it  must  be  the  evidence  of  a 
witness  who  says  he  perceived  it  by  that  sense  or  in  that  manner; 

If  it  refers  to  an  opinion,  or  to  the  grounds  on  which  that  opin- 
ion is  held,  it  must  be  the  evidence  of  the  person  who  holds  that 
opinion  on  those  grounds.  Stephen,  Dig.  art.  62.  See  Teerpenning 
v.  Corn  Exchange  Ins.  Co.  43  N.  Y.  279.  Trull  v.  True,  33  Me. 
•367.  So  oral  evidence  is  admissible  if  the  witness  swears  to  a 
certain  fact  as  true  to  the  ilbest  of  his  knowledge  and  belief"  or 
to  his  "best  impression"  McLean,  v.  Clark,  47  Ga.  24.  As  the 
accuracy  of  his  "impression"  is  for  the  determination  of  the  jury. 
Crowell  v.  Western  Reserve  Bank,  3  Ohio  St.  406;  Duvall  v. 
Darby,  38  Pa.  56.  It  should  be  added  however  in  this  connec- 
tion, in  regard  to  this  subject  of  impression,  that  where  they  are 
vague  and  illusive- — not  sufficiently  defined  in  or  impressed  upon 
the  memory  to  leave  a  substantial  reason  as  a  basis  for  the  testi- 
mony, the  evidence  should  be  rejected.  Humphries  v.  Parker, 
52  Me.  502;  State  v.  Flanders,  38  K  II.  324;  Ives  v.  Hamlin, 
5  Cush.  534;  People  v.  Wreden,  59  Cal.  392;  Wiggins  v.  Holley, 
11  Ind.  2. 

§  214.  Examination  in  Chief— Views  ot  Prominent  Text 
Writers. — After  a  witness  has  been  regularly  sworn,  the  party 
21 


[V2'2  LAW    OF    EVIDENCE    IN    CRIMINAL    CASKS. 

who  lias  called  him  proceeds  to  examine  him  in  chief;  respecting- 
which  examination  the  most  important  rule  is,  that  the  leading 
1 1  in-!  imis  must  not  be  put  to  the  witness;  that  is,  questions  which, 
being  material  to  any  of  the  points  of  the  issue,  plainly  suggests- 
to  him  the  answer  he  is  expected  to  make.  But  this  objection  is 
not  allowed  to  be  applied^if  the  question  is  merely  introductory 
and  one  which,  if  answered  by  "yes"  or  "no,"  would  not  be  con- 
clusive on  any  of  the  points  of  the  issue;  for  it  is  necessary  to  a 
certain  extent  to  lead  the  mind  of  the  witness  to  the  subject  of 
the  inquiry. 

If  a  witness  should  appear  to  be  in  the  interest  of  the  opposite 
party,  or  unwilling  to  give  evidence,  the  court  may  deem  it  right 
to  relax  the  rule  against  leading  questions,  and  allow  the  exami- 
nation in  chief  to  assume  something  of  the  form  of  a  cross-exam- 
ination. It  is  entirely  in  the  discretion  of  the  judge  to  determine 
how  far  he  will  allow  the  examination  in  chief  to  be  by  leading 
questions.     Russell,  Crimes,  chap.  5,  p.  913,  915,  §  2. 

t^  215.  Object  of  the  Examination  in  Chief. — The  object 
of  the  examination  in  chief  is  to  elicit  from  the  witness  all  the 
material  facts  which  tend  to  prove  the  case  of  the  party  who  calls 
the  witness.  In  such  a  case,  as  the  presumption  and  the  ordinary 
tact  are  that  the  witness,  having  been  chosen  by  the  party  who 
call-  him,  is  favorable  to  his  cause,  and  therefore  likely  to  over- 
state or  misstate  the  circumstances  which  conduce  to  establish  the- 
party's  case,  it  is  a  principal  rule  that — 

On  an  examination  in  chief,  a  witness  must  not  be  asked  lead- 
ing questions. 

The  simple  meaning  of  this  rule  is,  that  a  party  who  calls  a 
witness  to  prove  a  case  must  not  suggest  answers  to  the  witness,. 
nor  frame  his  question  in  such  a  manner  that  the  witness  by  an- 
swering merely  "yes"  or  "no,"  shall  give  the  reply  and  the  evi- 
dence which  the  party  wishes  to  elicit.  A  question  is  said  to  be 
lending  when  the  words  which  the  witness  is  expected  and  re- 
quired to  utter,  are  put  into  his  mouth,  or  when  it  suggests  to  the 
witness  tin-  answer  which  the  examiner  wishesor  expects  to  have; 
and  such  a  question  is  inadmissible,  because  the  object  of  calling 
witnesses  and  examining  them  viva  voce  in  open  court  is,  that  the 
judge  and  jury  may  hear  them  tell  their  own  unvarnished  tale  of 
the  circumstances  which  they  are  called  to  attest.  Such  a  course 
would  strike  radically  at  the  credibility  of  all  oral  evidence,  and. 


THE    EXAMINATION    OF    WITNESSES.  323 

therefore  it  is  a  sound  and  established  rule,  that,  on  the  examina- 
tion in  chief,  leading  questions  must  not  be  asked.  Heard,  Crim. 
Law,  p.  209. 

It  is  matter  of  discretion  with  the  court  before  whom  a  trial 
is  had,  whether  they  will  or  will  not  compel  counsel  to  disclose 
what  they  expect  to  prove  by  a  witness,  before  he  is  examined  in. 
chief.  Where  the  case  is  one  of  delicacy  and  importance,  and 
the  evidence  is  nicely  balanced,  and  the  scale  is  liable  to  be  affect- 
ed by  slight  circumstances,  courts  are  vigilant  in  preventing  any 
extraneous  or  irrelevant  matter  from  being  brought  before  the 
jury.  In  such  cases  counsel  will  be  required  to  state  the  substance 
of  what  they  expect  to  prove,  in  order  that,  if  irrelevant  or  im- 
proper, the  evidence  may  not  be  given;  when  the  lines  of  the  case 
are  more  broadly  marked,  less  caution  is  necessary  a-  the  rights  of 
the  parties  may  be  sufficiently  protected  by  the  court  deciding 
upon  the  competency  or  relevancy  of  the  evidence  as  it  falls  from 
the  witness.     People  v.  White,  14  Wend.  111. 

§  216.  Rule  as  to  Leading  Questions. — Though  the  rule  is, 
that  leading  questions  may  not  be  put  in  examination  in  chief, 
there  are  certain  exceptions,  some  allowed  as  of  right,  others  for 
convenience  sake. 

(a)  For  the  purpose  of  identifying  persons  or  things  which  have 
already  been  described,  the  attention  of  the  witness  may  be 
directly  pointed  to  them. 

(b)  When  a  witness  is  called  to  contract  another,  who  has  sworn 
to  a  certain  fact,  he  may  be  asked  in  direct  terms  whether  the  fact, 
ever  took  place. 

(c)  When  the  witness  is,  in  the  opinion  of  the  judge,  hostile  to 
the  party  calling  him. 

(d)  When  the  witness  is  unable  to  answer  general  questions 
from  defective  memory,  or  the  complicated  nature  of  the  matter 
as  to  which  he  is  interrogated. 

Leading  questions  are  also  not  objected  to — 

(a)  When  merely  introductory,  so  as  to  save  time. 

(b)  When  the  particular  matter  is  not  disputed.  Thus,  where 
a  witness,  having  deposed  to  a  fact,  has  not  been  cross-examined 
on  it,  questions  may  be  put  which  assume  that  fact.  Harris, 
Crim.  Law,  p.  355. 

The  first  general  rule  is,  that  a  party  to  whom  a  witness  is 
called,  cannot  ask  him  leading  questions,  that  is,  questions  sug- 


324  LAW    OF    EVIDENCE    IN    CRIMINAL    CASES. 

gesting  the  answer  desired.  1  Phil.  Ev.  Cowen  &  Hill's  Notes, 
268;  Chambers  v.  People,  5  111.  355;  Williams  v.  Jarrot,  6  111. 
L30.  This  rule  proceeds  upon  the  supposition  that  the  witness  is 
favorable  to  the  party  calling  him.  Where  such  is  not  the  fact, 
and  the  witness  appears  to  be  hostile,  the  rule  is  relaxed,  and  a 
more  searching  mode  of  examination  is  permitted,  partaking  of 
the  character  of  a  cross-examination.  Starks  v.  People,  5  Denio, 
lin',;  Williams  v.  Jarrot,  su/pr a.  Questions  of  introductory  mat- 
ter, leading  and  directing  the  mind  and  attention  of  the  witness 
to  tin'  main  inquiry,  and  which  will  not  be  conclusive  upon  any 
of  the  points  in  the  case,  are  not  liable  to  the  objection  of  being 
leading.  1  Phil.  &  Am.  Ev.  8SS;  Williams  v.  Jarrot,  supra. 
In  some  cases,  however,  leading  questions  are  permitted  on  a 
direct  examination.  Thus,  where  an  omission  in  the  testimony  of 
the  witness  is  caused  by  a  want  of  recollection,  which  a  sugges- 
tion may  assist,  such  suggestion  is  permitted  to  be  made.  As, 
where  a  witness  called  to  prove  a  partnership,  is  not  able  at  the 
momi  at  to  specify  the  several  names  of  the  partners,  a  number  of 
names,  containing  the  names  of  the  partners  among  others,  may 
be  suggested  to  him  for  the  assistance  of  his  memory.  Stark.  1ST. 
P.  lot i;    Haines,  Treatise,  p.  672. 

A  recent  celebrated  criminal  case  reported  from  California  dis- 
closes the  latitude  in  which  leading  questions  may  be  propounded 
by  the  trial  court,  The  conviction  was  for  murder,  and  wife 
murder  at  that,  and  was  based  upon  circumstantial  evidence  and 
the  opinion  of  experts.  After  the  accused  had  been  convicted 
and  sentenced  to  death,  the  brother  of  the  deceased  wife  con- 
fessed  the  crime,  exculpated  the  prisoner  and  then  committed  sui- 
cide. It  would  seem,  that,  during  the  progress  of  the  trial,  the 
presiding  judge  became  very  much  dissatisfied  with  the  character 
of  the  expert  testimony;  and  the  appellate  court  could  see  no 
valid  objection  to  such  a  proceeding,  except  that,  in  form,  some 
of  the  questions  asked  were  leading  and  suggestive.  Patterson, 
Justice,  says:  "If  they  assumed  facts  not  proved,  the  attention 
of  the  court  ought  to  have  been  directed  to  this  objection.  While 
it  was  probably  not  the  duty  of  the  defendant  to  urge  his  objec- 
to  questions  asked  by  The  court  with  the  formality  and  per- 
ce  required  when  counsel  for  the  prosecution  were  examining 
the  witness,  yet  the  attention  of  the  court  ought  to  have  been 
me  manner  to  the  objectionable  matters.     It  is  in  the 


THE    EXAMINATION    OF    WITNESSES.  325 

discretion  of  the  court  to  allow  counsel  to  ask  leading  questions 
and  there  is  no  reason  why  the  court  may  not,  of  its  own  motion, 
ask  questions  in  that  form."     People  v.  Bowers,  79  Cal.  415. 

Leading  questions  may  be  put  to  an  unwilling  witness,  but  there 
is  some  conflict  of  authority  as  to  whether  if  a  witness  unexpect- 
edly gives  testimony  adverse  to  the  party  calling  him,  such  party 
may  ask  him  if  he  has  not  on  another  particular  occasion  made  a 
contrary  statement.  We  think  the  cases  which  hold  that  the  wit- 
ness may  be  thus  cross-examined  by  the  party  who  called  him  are 
supported  by  the  better  reasons.     /Schuster  v.  State,  80  Wis.  107. 

As  late  as  1892  the  New  York  court  of  appeals  restated  its 

position  in  reference  to  leading  questions  and  unanimously  held, 

.that  the  entire  subject  relating  thereto  in  criminal  prosecutions 

was  within  the  discretion  of  the  trial  court.     People  v.  Sherman, 

133  N.  Y.  319. 

The  matter  of  leading  questions  at  any  stage  of  the  examina- 
tion, is  so  far  a  matter  of  discretion  that  no  legal  exception  will 
lie  to  any  ruling  thereupon.  2  Phil.  Ev.  892,  et  seep-  Sheldon  v. 
Wood,  2Bosw.  267. 

The  English  rule  on  cross-examination  is  that,  when  a  witness 
has  been  introduced,  sworn  and  examined  as  to  any  material  point 
in  the  case,  the  other  party  may  cross-examine  him  as  to  the  whole 
case,  including  any  new  matter  of  defense;  but  the  extent  to 
which  he  may  be  allowed  to  press  the  witness  with  leading  ques- 
tions will  depend  upon  the  circumstances  of  the  case,  the  demeanor 
of  the  witness,  his  apparent  bias  and  other  considerations,  and 
must,  to  a  great  extent,  be  left  to  the  sound  discretion  of  the  trial 
judge.  This  rule  is  adopted  by  several  of  the  American  state 
courts.  1  Thomp.  Trials,  §  430,  citing  2  Phil.  Ev.  896-911;  Mor- 
gan v.  Brydges,  2  Stark.  314;  Rex  v.  Brooke,  2  Stark.  472;  Web- 
ster v.  Zee,  5  Mass.  335;  Merrill  v.  Berkshire,  11  Pick.  269; 
Moody  v.  Powell,  17  Pick.  490,  28  Am.  Dec.  317;  Blackington 
v.  Johnson,  126  Mass.  21;  Beal  v.  Nichols,  2  Gray,  262;  Varick 
v.  Jackson,  2  Wend.  166,  19  Am.  Dec.  571;  Fulton  v.  Stafford^ 
2  Wend.  483;  Linsley  v.  Lovely,  26  Vt.  123;  Legg  v.  Drake,  L 
Ohio  St.  286;  Page  v.  Kankey,  6  Mo.  433;  Brown  v.  Burrus,  8 
Mo.  26;  St.  Bonis  &  I.  M.  E.  Co.  v.  Silver,  56  Mo.  265;  State  v. 
Sayres,  58  Mo.  585;  Knapp  v.  Schneider,  24  Wis.  70;  Durnford 
v.  Clark,  1  Mart.  O.  S.  2<>2;  Davidson  v.  DeZallande,  12  La. 
Ann.  826;   Nicholson  v.  Desobry,  14  La.  Ann.  81;  Kmg   v.  At- 


32G  LAW    OF    EVIDENCE    IN    CRIMINAL    CASES. 

bins,  33  La.  Ann.  1057;  Kibler  v.  Mcllwaine,  16  S.  C.  551;  Clin- 
ton v.  McK  mie,  5  Strobh.  L.  36;  Kelly  v.  Brooks,  25  Ala.  523; 
Fralick  \.  Presley,  20  Ala.  457,  65  Am.  Dec.  413. 
§  217.  No  Material  Fact  in  Issue  can  be  Assumed  on  Exam- 

ination. — It  is  no  objection  to  the  form  of  a  question  put  to  a 
witness  that  it  assumes  facts  which  are  not  disputed.  The  rules 
of  law  which  govern  in  the  examination  of  witnesses  as  effectually 
prohibit  counsel  from  assuming,  in  their  questions,  any  facts 
which  are  material  to  the  point  of  inquiry,  but  which  are  to  be 
ultimately  found  by  the  jury,  as  other  rules  of  law  forbid  the  pre- 
siding judge  from  assuming  such  facts  in  his  instructions  to  the 
jury.  In  the  former  case  the  reason  of  such  rules  does  not  rest 
merely  upon  the  consideration  that  such  assumption  of  facts  might 
mislead  the  witnesses,  but  upon  the  liability  of  such  assumption 
or  assertion  of  facts  by  counsel  becoming  a  substitute  in  the  minds 
of  the  jurors  for  evidence,  and  thus  calculated  to  mislead  them. 
In  the  latter  ease  the  reason  is  the  same,  with  the  further  reason 
that  the  assumption  by  the  court,  in  its  instructions  to  the  jury, 
of  material  facts  to  be  found  by  them,  is  regarded  as  an  invasion 
by  the  court  of  the  peculiar  province  of  the  jury.  The  rules  in 
the  former  case  are  so  rigidly  maintained  that  they  will  not  per- 
mit counsel,  even  upon  cross-examination  and  when  leading  ques- 
tions may  be  put,  to  assume  any  material  facts  in  issue  and  which 
are  to  be  found  by  the  jury,  or  to  assume  that  particular  answers 
have  been  given  contrary  to  the  fact.  Uaish  v.  Munday,  12  111. 
A  pp.  539.  ' 

§  218.  Nature  and  Scope  of  the  Rebuttal  Evidence  in  Crim- 
inal Cases. — The  rule  is  well  settled  that  in  rebuttal  the  people 
are  restricted  to  evidence  controverting  the  facts  proven  by  the 
evidence  of  the  defense;  and  that  no  evidence  confirmatory  of  the 
original  case  can  be  introduced  by  way  of  rebuttal,  even  though 
it  clearl}  establishes  the  prisoner's  guilt.  McLeocl's  Trial,  pamph. 
o.  222;  R  x  v.  JRlditch,  5  Car.  &  P.  200;  Rex  v.  Stimpson,  2 
( Jar.  &  1'.  415;  Brown  v.  Giles,  1  Car.  &  P.  US,  2  Phil.  Ev.  note 
500. 

The  cases  seemingly  contra(JRexv.  Yoke, Puss.  &  P.  531;  Poscoe, 

prim.  Ev.  (6  Am.  ed.)  88)  have  been  overruled  by  later  eases,  and 

the  recent  rule  now  well  settled  is,  where  two  offenses  of  a  differ- 

grade  of  felony  have  been  committed  by  a  prisoner  who  stands 

charged  only  with  the  commission  of  the  latter  and  greater,  the 


THE    EXAMINATION    OF    WITNESSES.  327 

evidence  must  be  restricted  to  proof  of  the  last  offense.  Proof  of 
any  one  crime  cannot  be  introduced  to  support  the  charge  of 
another.  Reg.  v.  Oddy,  2  Den.  C.  C.  26S,  273;  Barton  v.  State, 
IS  Ohio,  221;  Cole  v.  Com.  5  Graft.  696;  Com.  v.  Call,  21  Pick. 
515;  Baker  v.  State,  4  Ark.  56;  Dunn  v.  State,  2  Ark.  229;  Bex 
v.  Whiley,  2  Leach,  C.  C.  983;  LaBeau  v.  People,  34  N.  Y.  223; 
Friery  v.  People,  2  Keyes,  424. 

No  rule  for  the  conduct  of  a  trial  is  more  familiar  than  that  the 
party  holding  the  affirmative  is  bound  to  introduce  all  the  evi- 
dence on  his  side  before  he  closes.  Hastings  v.  Palmer,  20 
Wend.  225.  He  must  exhaust  all  his  testimony  in  support  of  the 
issue  on  his  side  before  the  testimony  on  the  opposite  side  has 
been  heard.  Ford  v.  Niles,  1  Hill,  301;  Rex  v.  Stimpson,  2  Car. 
vfe  P.  415.  He  can  afterwards  introduce  evidence  in  rebuttal 
only.  Rebutting  evidence  in  such  cases  means  not  merely  evi- 
dence which  contradicts  the  witnesses  on  the  opposite  side  and 
corroborates  those  of  the  party  who  began,  but  evidence  in  denial 
of  some  affirmative  fact  which  the  answering  party  has  endeavored 
to  prove.  Silverman  v.  Foreman,  3  E.  I).  Smith,  322;  Rex  v- 
Stimpson,  supra.  These  rules  may,  in  special  cases,  be  departed 
from  in  the  discretion  of  the  trial  judge,  but  a  refusal  to  depart 
from  them  is  no  ground  of  exception.  Marshall  v.  Davies,  78 
X.  Y.  414. 

"I  must  say  that  so  much  averse  am  Ito  withholding  testimony, 
that  I  can  hardly  conceive  of  a  case  so  gross  and  palpable  that  I 
should  feel  constrained  to  control  the  discretion  of  the  circuit 
judge  from  receiving  at  any  time  additional  affirmatory,  cumula- 
tive and  corroborative  evidence  of  facts  previously  proved,  or 
which  tends  to  strengthen  and  add  force  or  probability  to  such 
evidence.''     Lumpkin,  J.,  in  Walker  v.  Walker,  14  Ga.  242,  250. 

So  largely  is  the  admission  or  exclusion  of  evidence  not  strictly 
in  rebuttal  a  discretionary  matter  with  the  court  that  we  are  jus- 
tified in  formulating  a  general  rule  to  the  effect  that  material 
testimony  in  a  case  should  be  admitted  at  any  time,  before  the 
formal  submission  of  the  case  to  the  consideration  of  the  jury. 
The  presiding  judge  in  the  exercise  of  this  discretion  has  absolute 
immunity  from  all  review  unless  it  should  clearly  apj)ear  that 
there  was  a  willful  abuse  of  the  discretion  confided  to  him.  Of 
•course  where  important  testimony  is  withheld  with  the  obvious 
purpose  of  placing  either  party  to  a  disadvantage   the   trial  court 


328  LAW    OF    EVIDENCE    IN    CRIMINAL    CASES. 

would  be  abundantly  justified  in  refusing  it  admission.  Gaines 
v.  Com.  50  Pa.  319;  Dozier  v.  Jermcm,  30  Mo.  216,  220;  Hunts- 
man v.  Nichols,  116  Mass.  521;  Morse  v.  Potter,  4  Gray,  292; 
Marshall  v.  Davies,  58  How.  Pr.  231. 

The  language  of  the  New  York  court  of  appeals  is  a  practical 
reaffirmance  of  the  last  paragraph.  "The  extent  of  the  cross-ex- 
amination upon  matters  immaterial  to  the  issue,  is  in  the  discre- 
tion of  the  judge.  Inquiries  on  irrelevant  topics  to  discredit  the 
witness,  and  to  what  extent  this  maybe  pursued — are  matters 
committed  to  the  sound  discretion  of  the  trial  court;  and  this  is 
the  rule  as  regards  the  right  of  inquiry  into  all  matters  wholly 
collateral  and  immaterial  to  the  issue.  The  court  may  permit 
disparaging  inquiries  on  matters  irrelevant  to  the  issue,  where  the 
ends  of  justice  demand  it,  and  may  exclude  them  without  infring- 
ing upon  any  legal  right  af  the  parties;  and  the  exercise  of  this 
discretion  is  not  the  subject  of  review,  except  in  cases  of  plain 
abuse  and  injustice."     La  Beau  v.  People,  31  N.  Y.  230. 

Any  evidence  in  rebuttal  that  could  be  fairly  considered  admis- 
sible in  a  civil  action  is  equally  competent  in  a  criminal  case. 

This  does  not  imply  that  a  party  is  at  liberty  to  swell  the  vol- 
ume of  his  former  testimony,  but  rather  that  lie  must  meet  the 
evidence  afforded  by  new  matter;  by  evidence  not  already  in  the 
case  that  will  have  a  tendency  to  neutralize  the  effect  of  the  ad- 
versary's proof.  As  a  rule  any  evidence  that  rebuts  either  the 
main  issue  or  any  minor  inquiry,  is  pertinent.  Com.  v.  Tinkham, 
11  Gray,  L2;  Atkins  v.  State,  16  Ark.  56S;  Spivey  v.  State,  26 
Ala.  90;  Lightfoot  v.  People,  16  Mich.  507;  Coleman  v.  People, 
:»:>  X.  Y.  81;  State  v.  Shermer,  55  Mo.  83;  Eeid  v.  State,  50  Ga. 
556;  People  v.  Austin,  1  Park.  Crim.  Rep.  154;  Crawford  v. 
State,  12  Ga.  142. 

The  rule  exemplified  by  the  authorities  is  this:  that  whenever 
the  existence  of  a  purpose,  or  state  of  mind,  is  the  subject  of  in- 
quiry, explanatory  conduct  and  accompanying  expressions  of  the 
party  himself,  or  of  other  persons  to  him  or  in  his  presence,  may 
be  shown  by  proof.  Thus,  in  the  case  of  Hunter  v.  State,  40 
X.  .1.  L  495,  it  was  declared  by  the  court  of  errors  that  the  dec- 
larations  of  a  third  party  explanatory  of  an  act  that  was  part  of 
the  res  gestce  were  not  hearsay  but  were  legitimate  evidence. 

In  the  recent  case  of  People  v.  Bowling,  84  K  Y.  478.  which 
was  a  prosecution  for  receiving  stolen  goods,  after  the  state  had 
proved  the  receipt  of  the  goods,  the  defendant,  in  order  to  rebut 


THE    EXAMINATION    OF    WITNESSES.  329- 

the  inference  of  guilty  knowledge  on  his  part,  offered  to  show 
what  statement  the  thief  had  made  to  him  at  the  time  he  pur- 
chased the  property,  with  respect  to  the  source  from  which  he 
had  got  it;  and  such  statements  were  held  competent  evidence  by 
the  court  of  appeals. 

An  application  of  the  same  principle  appears  in  the  case  of 
Rex  v.  Whitehead,  1  Car.  &  P.  67,  and  reference  to  other  like 
cases  will  be  found  in  the  text-books. 

§  219.  The  Cross-examination. — The  privilege  of  cross-ex- 
amination is  limited  only  to  the  discretion  of  the  judge.  Peake 
in  his  treatise  on  Evidence,  says:  "It  is  impossible  to  lay  down 
a  rule  on  this  subject  applicable  to  all  cases,  and  therefore  it  must 
be  left  wholly  to  the  discretion  of  the  judge,  who,  in  general,  is 
guided  by  the  demeanor  of  the  witness,  and  the  situation  he  stands 
in,  with  relation  to  the  parties."  (pp.  189,  190).  Pothier,  in  his 
treatise  on  Obligations  says :  "The  cross-examination  of  witnesses 
adduced  by  the  opposite  party,  is  a  subject  of  the  utmost  nicet}^, 
with  respect  both  to  the  conduct  of  the  advocate  and  the  discrim- 
ination of  those  who  are  to  form  a  judgment.  .  .  .  The 
abuse  to  which  this  procedure  is  liable  are  the  subject  of  very 
frequent  complaint,  but  it  would  be  absolutely  impossible,  by  any 
but  general  rules,  to  apply  a  preventive  to  these  abuses,  without 
destroying  the  liberty  upon  which  the  benefits  (above  adverted 
to)  essentially  depend;  and  all  that  can  be  effected  by  the  inter- 
position of  the  court,  is  a  discouragement  of  any  virulence  towards 
the  witness,  which  is  not  justified  by  the  nature  of  the  cause.     . 

.  Whatever  can  elicit  the  actual  dispositions  of  the  witness 
with  respect  to  the  event,  whatever  can  detect  the  operation  of  a 
concerted  plan  of  testimony,  or  bring  into  light  the  incidental 
facts  and  circumstances  that  the  witness  may  be  supposed  to  have 
suppressed;  in  short,  whatever  may  be  expected  fairly  to  promote 
the  real  manifestation  of  the  merits  of  the  cause  is  not  only  jus- 
tifiable, but  meritorious."     Vol.  2,  pp.  228,  229. 

So,  as  a  general  rule  the  range  and  extent  of  such  an  examina- 
tion is  within  the  discretion  of  the  trial  judge,  subject,  however, 
to  the  limitation  that  it  must  relate  to  matters  pertinent  to  the 
issue,  or  to  specific  facts  which  tend  to  discredit  the  witness  or 
impeach  his  moral  character.  People  v.  Brown,  72  K.  Y.  571;. 
Ryan  v.  People,  79  N.  Y.  594;  People  v.  Gr«p<>,  70  N.  Y.  290, 
32  Am.  Iiep.  302.     If  this  limitation  is  not  disregarded   we   can 


330  LAW    OF    EVIDENCE    IN    CRIMINAL    CASES. 

onl  v  interfere  where  there  has  been  an  abuse  of  discretion.  Third 
(,'/■■  at  Western  Tump.  R.  Go.  v.  Loomis,  32 1ST.  Y.  127;  LaBeau 
v.  People,  34  K  Y.  230;  People  v.  Casey,  72  In.  Y.  393;  People 
v.  Oyer  cfc  Terminer  Ct.  83  !N.  Y.  436. 

The  opposite  party  may  cross-examine  the  witness  to  any  facts 
stated  in  his  direct  examination,  or  connected  therewith,  and  in 
so  doing  may  put  leading  questions,  but  if  he  examines  him  as  to 
other  matters,  such  examination  is  to  be  subject  to  the  same  rules 
as  a  direcl  examination. 

And  the  court  may  in  all  instances,  limit  the  time  allowed  for 
the  cross-examination  of  witnesses  {Lynch  v.  State,  9  Ind.  541),  or 
Hie  number  of  witnesses  on  either  side.  Mergentheim  v.  State, 
107  Ind.  567.  So,  too,  the  court  may  at  all  times  interpose  its 
.authority  to  regulate  the  manner  and  substance  of  the  examina- 
tion, to  prevent  the  intimidation  of  witnesses  or  the  evasiveness. 
of  their  replies  or  any  matters  legitimately  within  the  scope  redi- 
rect, cross  or  otherwise.     State  v.  Scott,  80  N.  C.  365. 

a.  Rule  as  to  Hostile  Witnesses. — Where  it  appears  that  a 
witness  is  hostile  to  the  party  calling  him  or  is  reluctant  and 
evasive  in  his  replies,  leading  questions  although  generally  ex- 
cluded may  be  allowed.  This  too  is  a  matter  largely  within  the 
sphere  of  the  court's  discretion.  Klock  v.  State,  60  Wis.  574. 
In  the  language  of  a  well  known  writer,  "the  judge  may,  in  his 
discretion,  allow  leading  questions  to  be  put,  on  director  redirect 
examination;  where  the  witness  is  hostile  or  reluctant,  or  is  in 
the  interest  of  the  other  party,  or  so  youthful,  ignorant,  or  infirm 
as  to  require  the  attention  to  be  led;  or  where  his  memory  has 
been  exhausted  without  stating  some  particular,  such  as  a  name, 
which  cannot  be  significantly  pointed  out  by  a  general  inquiry." 
Ahhott.  Trial  Brief,  95. 

Instances  frequently  arise,  particularly  on  the  part  of  the  pros- 
ecution, where  the  witness  is  evidently  reluctant  and  the  state's 
.attorney  is  burdened  with  his  presence  chiefly  because  he  may 
have  been  the  only  eyewitness  of  the  alleged  offense.  In  such 
cases  the  trial  court  should  regard  the  witness  as  hostile  and  in- 
dulge the  utmost  latitude  in  his  examination.  It  is  quite  time 
that  it  was  understood  that  the  criminal  classes  of  this  country 
are  not  to  be  emancipated  from  all  the  effects  of  their  vicious 
courses  merely  because  one  of  their  own  ilk  is  a  witness  for  the 
state  and  as  such  attempts  by  evasion  and  subterfuge  to  further 


THE    EXAMINATION    OF    WITNESSES.  331 

their  own  interests  by  placing  a  stumbling  block  in  the  path  of 
the  state's  attorney.  The  wide  discretion  accorded  the  trial  court 
in  the  matter  of  the  cross-examination '  of  witnesses  will  correct 
any  tendency  to  jeopardize  the  people's  case. 

It  is  competent  to  ask  a  witness  on  cross-examination,  whether 
lie  has  been  in  jail  or  state  prison,  and  how  much  of  his  life  he 
lias  passed  in  such  places,  with  a  view  to  impair  his  credibility. 
The  extent  of  such  cross-examination  rests  somewhat  in  the  dis- 
cretion of  the  court,  but  the  discretion  should  be  liberally  exer- 
cised.    Real  v.  People,  42  K  Y.  270. 

b.  Confined  to  Relevant  Facts. — A  witness  cannot  be  asked, 
upon  cross-examination,  questions  which  are  not  in  any  way  rele- 
vant to  the  matters  in  issue;  neither  is  a  question  allowed  to  be 
asked  which,  if  answered  affirmatively,  would  be  wholly  irrelevant 
to  the  issue;  for  the  purpose  of  discrediting  the  witness  if  he 
answers  in  the  negative,  by  calling  other  witnesses  to  disprove 
what  he  says;  but  this  subject  will  perhaps  be  more  conveniently 
•discussed  in  a  subsequent  section. 

Counsel  upon  cross-examination  cannot  assume  that  the  witness 
has  made  an  assertion  in  his  examination  in  chief,  which  was  not 
in  fact  made,  or  put  a  question  which  assumes  a  fact  not  in  proof. 
Russell,  Crimes,  chap.  5,  §  2. 

In  Wentworth  v.  Bidder,  3  E.  D.  Smith,  309,  a  point  was  made 
that  the  witness,  on  cross-examination,  had  been  asked  irrelevant 
■questions.  Woodruff,  J.,  says :  "True,  the  evidence  was  not 
relevant  to  the  issue,  but  there  is  no  test  for  a  cross-examination, 
if  it  was  relevant  to  the  credibility  of  the  witness  or  any  collat- 
eral matter  opened  by  the  adverse  party.  The  latitude  given  to 
-cross-examination  is  such,  moreover,  that  we  must  be  fully  satis- 
fied that  injustice  is  caused  by  it,  before  we  would  reverse  a 
judgment  because  on  cross-examination  a  purely  irrelevant  ques- 
tion was  allowed."  See  Plato  v.  K,  lly,  16  Abb.  Pr.  1SS;  Third 
Great  Western  Turnp.  R.  Co.  v.  Loomis,  32  N.  Y.  127;  Hardy 
v.  Norton,  66  Barb.  527. 

The  examination,  both  direct  and  cross,  must  be  confined  to 
facts  relevant  to  the  issue,  but  in  cross-examination  the  witness 
need  not  be  confined  entirely  to  the  facts  to  which  he  testified  to 
the  chief,  and  in  the  re-direct  examination,  he  is  only  allowed  to 
explain  such  matters  as  were  first  elicited  upon  the  cross-examina- 
tion.    It  is  hardly  necessary  to  state  that  where  new  matter  is  by 


332  LAW    OF    EVIDENCE    IN    CRIMINAL    CASES. 

express  sanction  of  the  court  introduced  after  the  direct  examina- 
tion by  either  party,  the  opposite  party  is  privileged  to  cross-ex- 
amine upon  the  subject  of  the  new  matter. 

c.  When  Party  Makes  Witness  his  Own. — By  going  into  a. 
new  matter  not  involved  in  the  direct  examination,  the  party 
cross-examining,  makes  the  witness  his  own  so  far  as  concerns  his 
response  to  the  questions  regarding  that  matter.  Houghton  v. 
Jones,  68  U.  S.  1  Wall.  702,  17  L.  ed.  503;  Hughes  v.  Westmore- 
land Coal  Co.  104  Pa.  207;  Donnelly  v.  State,  26  K  J.  L.  463, 
601;  Aurora  v.  Cobb,  21  Ind.  492;  Ilurlhut  v.  Meeker,  104  111. 
541;  Austin  v.  State,  14  Ark.  555;  People  v.  Miller,  33  Cal.  99; 
State  v.  Smith,  49  Conn.  376;  State  v.  Swayse,  30  La.  Ann.  1323. 

d.  Rule  as  to  Collateral  Matters. — Where  collateral  matter 
has  been  introduced  into  the  cause  by  the  party  whose  witness  is 
on  the  stand  in  the  testimony  in  chief — evidence  not  exactly  per- 
tinent to  the  issue  on  trial — whether  the  other  side  is  bound  to 
treat  that  as  his  own  collateral  matter,  as  the  collateral  matter  of 
the  cross-examining  party.  The  cross-examiner  may  ask  ques- 
tion- which  are  collateral,  and  may  do  this  very  extensively,  but 
he  must  take  the  answer  of  the  witness  as  true.  If  he  is  not, 
satisfied  with  the  answer,  nevertheless  he  is  bound  by  it,  because 
he  has  chosen  to  ask  the  question  that  really  does  not  belong  to 
the  case.  But  where  the  party  whose  witness  is  on  the  stand  in- 
troduces collateral  matter,  and  his  witness,  I  will  presume,  testifies 
falsely  in  regard  to  that  collateral  matter,  whether  the  other  side 
may  not  contradict  that  witness  in  regard  to  that  collateral  matter,, 
is  another  question.  Wylie,  Justice,  in  United  States  v.  Horsey, 
Star  Route  Trial,  p.  3S32. 

Digesting  the  statement  of  the  court  with  reference  to  this 
matter,  it  appears  that  answers  to  questions  regarding  side  issues 
or  collateral  matters  are  not  open  to  contradiction;  but  where  such 
matters  are  brought  out  by  the  examination  in  chief,  the  cross- 
examiner  may  endeavor  to  contradict  him. 

It  should  be  remembered  that  ordinarily  a  witness  can  testify 
only  to  those  facts  which  he  knows  of  his  own  knowledge  except 
in  those  cases  in  which  his  opinion  or  the  declaration  or  conduct 
of  others  is  relevant. 

When  a  witness  is  cross-examined,  he  may  be  asked  any  ques- 
tion which  tends  ; 

(1)  To  test  his  accuracy,  veracity,  or  credibility;  or 


THE    EXAMINATION    OF    WITNESSES.  333 

(2)  To  shake  lii.s  credit,  by  injuring  his  character. 

Witnesses  have  been  compelled  to  answer  such  questions,  though 
the  matter  suggested  was  irrelevant  to  the  matter  in  issue,  and 
though  the  answer  was  disgraceful  to  the  witness;  but  it  is  sub- 
mitted that  the  court  has  the  right  to  exercise  a  discretion  in  such 
cases,  and  to  refuse  to  compel  such  questions  to  be  answered 
when  the  truth  of  the  matter  suggested  would  not,  in  the  opinion 
of  the  court,  affect  the  credibility  of  the  witness  as  to  the  matter 
to  which  he  is  required  to  testify. 

In  the  case  provided  for  in  article  120,  a  witness  cannot  be 
compelled  to  answer  such  a  question.     Stephen,  Dig.  art.  1-20. 

The  rule,  as  stated  in  the  books,  that  a  witness  cannot  be  en  >ss- 
examined  as  to  any  fact  which  is  collateral  and  irrelevant  to  the 
issue,  merely  for  the  purpose  of  contradicting  him  by  other  evi- 
dence, if  he  should  deny  it,  thereby  to  discredit  his  testimony, 
does  not,  by  any  means,  imply  that  a  witness  may  be  cross-exam- 
ined, for  such  purpose,  as  to  every  fact  which  is  relevant  to  the 
issue.  The  right  of  cross-examination,  for  such  purpose,  is  lim- 
ited to  those  matters  which  tend  to  contradict,  discredit,  vary, 
qualify,  or  explain  the  testimony  given  by  the  witness  on  direct 
examination.  In  the  leading  case  of  Atty.  Gen.  v.  Hitchcock,  1 
Exeh.  01,  the  rule  was  stated  as  follows  by  Alderson,  B.\  "A 
witness  may  be  asked  any  question  which,  if  answered,  would 
qualify  or  contradict  some  previous  part  of  that  witness's  testi- 
mony, given  on  the  trial  of  the  issue:  and  if  that  question  is  so 
put  to  him  and  answered,  the  opposite  party  may  then  contradict 
him,  and  for  this  simple  reason,  that  the  contradiction  qualifies 
or  contradicts  the  previous  part  of  the  witness's  testimony,  and  so 
removes  it."  The  reported  cases,  so  far  as  we  are  acquainted 
with  them,  are  consistent  with  the  rule,  and  the  reason  of  it, 
stated  by  Baron  Alderson. 

If  the  cross-examination  tends  merely  to  disgrace  the  witness, 
but  relates  to  a  collateral  and  independent  fact,  and  goes  clearly 
to  the  credit  of  the  witness,  whether  in  such  ease  he  lias  the  priv- 
ilege to  decline  or  not,  the  matter  so  far  rests  in  the  discretion  of 
the  trial  court  that  in  the  absence  of  a  claim  of  privilege,  if  the 
question  relate  to  a  matter  of  recent  date  and  would  materially 
assist  the  jury  or  the  court  in  forming  an  opinion  as  to  his  credi- 
bility, the  court  will  usually  require  an  answer,  over  the  objection 
of  counsel,  but  may  sustain  an  objection. 


334  LAW    OF    EVIDENCE    IN    CRIMINAL    CASES. 

When  tlic  answer  would  tend  to  criminate  the  witness,  but 
would  be  collateral  and  irrelevant  to  the  issue,  and  yet  would 
affect  his  credibility,  if  he  do  not  claim  his  privilege,  no  distinc- 
tion, so  far  as  the  discretion  of  the  court  and  the  right  of  a  party 
to  call  for  its  exercise  1  > \  an  objection  are  concerned,  can  be  per- 
ceived between  Mich  a  case  and  one  differing  from  it  in  only  that 
the  answer  would  merely  disgrace  the  witness.  In  short,  where- 
the  question  relates  to  a  particular  act  which  is  collateral  and 
irrelevant  to  the  issue,  it  is  proper  for  a  party  to  object,  and  it  is- 
within  the  sound  discretion  of  the  court,  where  the  witness  does 
do1  exercise  a  privilege  to  decline,  to  permit  an  answer,  if,  by 
affecting  the  credibility  of  the  witness,  it  will  subserve  justice,  or 
to  sustain  the  objection,  if  such  purpose  will  not  be  promoted  by 
the  answer;  and  if  the  answer  would  not  affect  the  credibility  of 
the  witness,  the  court  should  sustain  the  objection,  and  has  no- 
discretion  to  admit  the  evidence.  See  Third  Great  Western 
Tump.  R.  Co.  v.  Loomis,  32  K  Y.  127;  Shepard  v.  Parker,  36 
N.  V.  517;  South  Bend  v.  Hardy,  98  Ind.  577. 

e.  Duty  of  the  Court  to  Protect  the  Witness. — Zeal  in  a 
prosecuting  attorney  is  entitled  to  the  highest  commendation, but 
that  zeal  most  be  exercised  within  proper  limits.  In  civil  cases 
counsel  often  take  too  much  latitude  in  the  cross-examination  of 
witnesses.  Witnesses  are  entitled  to  respectful  consideration,  and 
it  is  the  duty  of  courts  to  see  that  they  are  protected  from  the 
insinuations  and  attacks  of  counsel,  whether  the  insinuation  or 
attack  is  direct  or  is  in  the  form  of  a  suggestive  question.  In 
criminal  cases  the  prosecuting  attorney  is  a  public  officer,  acting 
in  a  quasi  judicial  capacity.  Juries  very  properly  regard  him  as- 
unprejudiced,  impartial,  and  non-partisan;  and  insinuations  thrown 
out  by  him  regarding  the  credibility  of  witnesses  for  the  defense 
are  calculated  to  prejudice  the  defendant.  People  v.  Cahoon,  88- 
Mich.  456. 

In  Riokdbus  v.  Gott,  51  Mich.  227,  the  court  held  that  "the 
duty  of  the  trial  judge  to  repress  needless  scandal  and  gratuitous 
attacks  on  character  is  a  very  plain  one,  and  good  care  should  be 
taken  to  discharge  it  fully  and  faithfully."  See  also,  as  bearing 
upon  this  question.  Bond  v.  Pontiac,  O.  &  P.  A.  R.  Co.  62  Mich. 
643;  Cronhhite  v.  J > ickerson,  51  Mich.  178;  Wheeler  v.  Wallace, 
53  Mich.  .">.">»'>;  People  v.  Hare,  57  Mich.  5061  These  cases  also- 
impose  the  duty  on  the  judge  to  protect  every  witness  from  irrel- 


THE    EXAMINATION    OF    WITNESSES.  &6o 

evant,  insulting  or  improper  questions,  and  from  harsh  or  insult- 
ing treatment;  and  a  witness  shall  be  detained  only  so  long  as  the 
interests  of  justice  require. 

f.  Cross-examination  During  Absence  of  the  Accused. — 

Generally,  it  may  be  said  that  the  continuance  of  a  cross-examin- 
ation of  the  people's  witnesses  during  the  brief  absence  of  the 
prisoner  on  the  trial  is  not  a  violation  of  the  statutory  provision 
that  no  person  can  be  tried  for  a  felony  "unless  he  be  personally 
present  during  such  trial."  People  v.  Bragle,  88  N.  Y.  585,  42 
Am.  Rep.  269.  Maurer  v.  People,  43  N.  Y.  1,  does  not  state  a 
contra  view,  as  in  that  case  the  absence  was  of  some  length  and 
effected  a  substantial  right  of  the  accused. 

g.  Recalling  Witness. — "Whenever  any  witness  has  been  exam- 
ined in  chief,  the  opposite  party  has  a  right  to  cross-examine  him, 
and  after  the  cross-examination  is  concluded  the  party  who  called 
the  witness  has  a  right  to  re-examine  him.  The  court  may,  in  all 
cases,  permit  a  witness  to  be  recalled  either  for  further  examina- 
tion in  chief  or  for  further  cross-examination,  and  if  it  does  so, 
the  parties  have  the  right  of  further  cross-examination  and  further 
re-examination  respectively.  Stephen,  Dig.  art.  126;  Cummings 
v.  Taylor,  24  Minn.  429;  Com.  v.  McGorty,  114  Mass.  299;  Con- 
tinental Ins.  Co.  v.  Delpeuch,  82  Pa.  22a. 

It  is  within  the  discretion  of  the  judge  at  the  trial,  to  permit  a 
witness  to  be  recalled  to  a  fact  in  respect  to  which  he  had  before 
testified,  and  to  explain,  qualify  or  contradict  his  former  state- 
ments, and  the  discrepancy  in  the  statements  only  affects  his  credi- 
bility. A  court  of  review  cannot  revise  or  reverse  the  decision  of 
the  judge  at  the  trial,  in  a  matter  properly  resting  in  his  discre- 
tion! Wright  v.  Willcox,  9  C.  B.  650;  People  v.  Cook,  8  K  Y. 
67;  Williams  v.  Sargeant,  46  N.  Y.  482. 

A  witness  once  examined  cannot  be  re-examined  as  to  the  same 
matter  without  leave  of  the  court.  But  he  may  be  re-examined 
as  to  any  new  matter,  upon  which  he  has  been  examined  by  the 
adverse  party.  After  the  examinations  on  both  sides  are  once 
concluded,  the  witness  cannot  be  recalled  without  leave  of  the 
court.  This  is  purely  a  discretionary  matter  and  never  a  fit  sub- 
ject of  review  unless  for  gross  abuse  of  the  discretion. 

Under  obvious  principles  of  justice  the  trial  court  should  allow, 
in  all  cases,  civil  or  criminal,  a  witness  to  explain  an  error  or  inad- 
vertence in  his  testimony  when  he  requests  to  do  so  before   leav- 


ooti  LAW    OF    EVIDENCE    IN    CRIMINAL    CASES. 

ing  tlic  stand;  and  it  is  within  the  discretion  of  the  court  to  recall 
him  for  that  purpose.     Oberf elder  v.  Kavanaugh^l  Neb.  483. 

h.  Views  of  Sir  James  Stephen. — Stephen,  in  his  Digest  of 
the  haw  of  Evidence,  expounds  the  law  as  follows: 

"When  a  witness  is  cross-examined  he  may  be  asked  any  ques- 
tion which  tends:  1.  To  test  his  accuracy,  veracity,  or  credibility; 
or  _.  T<>  shake  his  credit  by  injuring  his  character.  He  may  be 
compelled  to  answer  any  such  question,  however  irrelevant  it  may 
be  to  the  facts  in  issue,  and  however  disgraceful  the  answer  may 
be  to  himself,  except  in  the  case  provided  for  in  article  120,  namely, 
where  the  answer  might  expose  him  to  a  criminal  charge  or  pen- 
.alty."     Art.  129. 

By  placing  such  inquiries  within  the  sound  discretion  of  the 
court,  the  past  lives  of  witnesses  are  not  liable  to  be  ransacked  and 
exposed;  for  against  such  unreasonable  and  oppressive  cross- 
examinations  the  power  of  the  court  may  be  interposed,  on  its  own 
.motion,  to  protect  the  witness  and  prohibit  such  questions.  In 
the  liberality  allowed  on  cross-examinations,  to  promote  the  ends 
of  justice,  a  sound  discretion  will  never  sanction  inquiries  the  sole 
purpose  of  which  is  to  disgrace  the  witness,  and  not  to  test  his 
credibility.  And  whenever  such  is  the  object  of  it,  it  is  the  duty 
of  the  court  to  disallow  it,  and  to  confine  the  cross-examination  to 
proper  limits.  It  will  be  seen,  therefore,  that  the  abuse  of  such 
a  cro.-s-examination  is  guarded  against:  1.  By  the  privilege  of  the 
wirne^  to  decline  to  answer  any  question  which  may  disgrace  him, 
or  may  tend  to  charge  him  as  a  criminal;  and  2.  By  the  power  of 
the  court  to  interpose  and  to  protect  the  witness,  of  its  own  motion. 
State  v.  Bacon,  13  Or.  143. 

i.  Cause  for  Remembering  Certain  Facts. — A  witness  is  at 
liberty  to  state  certain  collateral  facts  that  tend  to  fix  some  other 
fact  about  which  he  is  being  questioned  in  his  memory,  and  it 
frequently  occurs  in  all  examinations  that  the  fact  of  having  had 
a  conversation  concerning  a  certain  matter  is  one  of  the  surest 
methods  of  remembering  the  subject-matter  called  for. 

It  is  always  competent  for  a  witness  to  state  that  he  had  a  con- 
versation with  a  third  person  on  a  certain  subject  germane  to  the 
;n  dispute,  andatatime  specified,  as  a  reason  for  his  accurate 
recollection  of  the  fact  to  which  he  has  testified.  The  rules  of 
evidence  are  those  of  common  sense  and  human  experience;  and 
both  of  these  teach  us  that  the  retentiveness  of  a  witness's  memory 


THE    EXAMINATION    OF    WITNESSES.  337 

«,s  to  a  particular  fact  or  indictment,  is  greatly  improved  where, 
after  seeing  or  hearing  of  it,  he  subsequently  converses  about  it. 
-Adams  v.  Robinson,  65  Ala.  587. 

j.  The  English  Rule. — Every  witness  under  cross-examination 
in  any  proceeding,  civil  or  criminal,  may  be  asked  whether  he  has 
made  any  former  statement  relative  to  the  subject-matter  of  the 
action  and  inconsistent  with  his  present  testimony,  the  circum- 
stances of  the  supposed  statement  being  referred  to  sufficiently  to 
designate  the  particular  occasion,  and  if  he  does  not  distinctly 
admit  that  he  has  made  such  a  statement,  proof  may  be  given  that 
he  did  in  fact  make  it. 

The  same  course  may  be  taken  with  a  witness  upon  his  exami- 
nation in  chief,  if  the  judge  is  of  opinion  that  he  is  "adverse"  (i  e. 
hostile)  to  the  party  by  whom  he  was  called,  and  permits  the 
■question.     Stephen,  Dig.  art.  131. 

When  a  witness  under  cross-examination  has  been  asked  and 
has  answered  any  question  which  is  relevant  to  the  inquiry  only 
in  so  far  as  it  tends  to  shake  his  credit  by  injuring  his  character, 
no  evidence  can  be  given  to  contradict  him,  except  in  the  follow- 
ing cases : 

(1)  if  a  witness  is  asked  whether  he  has  been  previously  con- 
evicted  of  any  felony  or  misdemeanor,  and  denies  or  does  not  admit 
it,  or  refuses  to  answer,  evidence  may  be  given  of  his  previous 
conviction  thereof. 

(2)  If  a  witness  is  asked  any  question  tending  to  show  that  he 
is  not  impartial,  and  answers  it  by  denying  the  facts  suggested, 
he  may  be  contradicted.     Stephen,  Dig.  art.  130. 

§  220.  Importance  of  Cross-examination. — The  importance 
and  value  of  a  cross-examination  is  truly  and  forcibly  stated  by 
Mr.  Starkie  in  his"*work  on  Evidence,  vol.  1,  page  25.  He  says : 
"The  power  given  to  a  party  against  whom  evidence  is  offered, 
•of  cross-examining  the  witness  upon  whose  authority  the  evidence 
depends,  constitutes  a  strong  test  both  of  the  ability  and  the  will- 
ingness of  the  witness  to  declare  the  truth.  By  this  means  the 
opportunity  which  the  witness  had  of  ascertaining  the  fact  to 
which  he  testifies,  his  ability  to  acquire  the  requisite  knowledge, 
liis  powers  of  memory,  his  situation  with  respect  to  the  parties, 
his  motives,  are  all  severally  examined  and  scrutinized."  Every 
jjerson  who  has  been  engaged  in  the  trial  of  causes  in  courts  of 
22 


;;:;s  law  of  evidence  in  criminal  cases. 

justice,  indeed  every  one  who  has  given  any  attention  to  the  trial 
of  causes,  lias  seen  how  efficacious  a  cross-examination  is,  in  elicit- 
ing truth,  in  separating  hearsay  from  knowledge,  and  in  defeating 
the  most  carefully  prepared  schemes  of  perjury  and  fraud.  A 
right  so  valuable  to  parties  should  not  he  taken  away  or  impaired.. 
( >n  the  contrary,  it  should  be  held  sound  and  guarded  against  all 
attempts,  open  or  covert,  to  limit  or  restrict  it.  Like  most  other 
rights  of  litigants,  it  may  be  waived  or  lost  by  laches.  But  to 
deprive  a  party  of  it,  the  waiver  or  the  laches  must  be  clearly 
shown.  It  will  not  do  to  refuse  a  party  the  right  of  cross-exami- 
nation upon  doubtful  evidence  of  an  intention  onhis  part  to  waive 
or  surrender  it.     Cole  v.  People,  2  Lans.  370. 

"Cross-examination,"  says  Christiancy,  Ch.  J.,  "is  the  greatest, 
test  of  knowledge,  as  well  as  the  veracity  of  the  witness.  The 
right  to  pursue  it  may  sometimes  be  abused;  and  when  it  is  sought 
to  be  abused, — as  when  counsel  insists  upon  going  over  the  same 
ground  again  and  again,  or  where  it  is  apparent  that  the  witness- 
has  already  fully  answered  without  any  appearance  of  evasion, 
and  it  is  evident  the  counsel  is  merely  pushing  the  witness  for  the- 
sake  of  annoyance,  or  for  any  illegitimate  purpose, — it  is  compe- 
tent for  the  court,  in  its  discretion,  to  put  an  end  to  it." 

The  advantages  of  the  viva  voce  examination  are  thus  outlined: 
I iv  Sir  John  Coleridge  :  "The  most  careful  note  must  often  fail 
to  convey  the  evidence  fully  in  some  of  its  most  important  ele- 
ments, viz:  those  for  which  the  open  oral  examination  of  the  wit- 
ness in  presence  of  prisoner,  judge  and  jury,  is  so  justly  prized.. 
It  cannot  give  the  look  or  manner  of  the  witness;  his  hesitation, 
his  doubts,  his  variations  of  language,  his  confidence  or  precipi- 
tancy,  his  calmness  or  consideration;  it  cannot  give  the  manner  of 
the  prisoner,  when  that  has  been  important,  upon  the  statement 
of  anything  of  particular  moment.  It  is,  in  short,  or  it  may  be,, 
the  dead  body  of  the  evidence,  without  its  spirit,  which  is  supplied 
when  given  open  or  orally,  by  the  ear  and  eye  of  those  who 
receive  it."  Reg.  v.  Bertrcmd,  L.  E.  1  P.  C.  535, 10  Cox,  C.  C. 
625. 

§  221.  Extent  of  Cross-examination. — It  was  ruled  at  an 
early  day  in  the  supreme  court  of  Missouri  that  when  one  party 
introduced  a  witness  and  examined  him,  the  adverse  party  could 
cross-examine  tin;  witness  as  to  all  matters  involved  in  the  case, 
no  matter  how  formal  or  unimportant  the  examination  in  chief 


THE    EXAMINATION    OF    WITNESSES.  339 

may  have  been.  Page  v.  Kankey,  6  Mo.  433;  St.  Louis  &  I. 
J/.  R.  Co.  v.  Silver,  56  Mo.  200.  The  authorities  are  in  conflict 
on  this  subject  and  may  be  found  collated  by  Professor  Greenleaf. 
1  Greenl.  Ev.  §  445;  State  v.  Brady,  87  Mo.  142. 

And  where  a  witness,  cross-examined  in  part,  without  fault  of 
the  party  who  summoned  him,  disappears,  so  that  his  cross-exam- 
ination cannot  be  completed,  it  is  not  the  right  of  the  cross- 
examining  party  to  have  the  whole  evidence  stricken  out.  lin- 
den v.  Pratt  (Sup.  Ct.  K  Y.)  1  Thomp.  &  C.  554,  S  AhV  L.  J. 
382. 

Whether,  when  a  party  is  once  entitled  to  cross-examine  a  wit- 
ness,  his  right  continues  through  all  the  subsequent  stages  of  the 
cause,  so  that  if  the  party  should  afterwards  recall  the  same  wit- 
ness, to  prove  a  part  of  his  own  case,  he  may  interrogate  him  by 
leading  questions,  and  treat  him  as  the  witness  of  the  party  who 
first  adduced  him,  is  also  a  question  upon  which  different  opin- 
ions have  been  held. 

It  is  legitimate  cross-examination  to  interrogate  an  opposing 
witness  as  to  his  relations  to  the  parties  and  the  litigation,  his 
motives,  interests,  inclinations,  and  prejudices,  his  means  of  ob- 
taining correct  and  certain  knowledge  of  the  facts  to  which  he 
testifies,  and  the  manner  in  which  he  has  used  those  means.  1 
Greenl.  Ev.  §  446.  Such  testimony  is  not  collateral  and  irrele- 
vant to  the  issue,  and  the  party  calling  it  out,  if  it  be  adverse  to 
him,  may  contradict  it  by  other  testimony  for  the  purpose  of  dis. 
crediting  the  witness.  All  this  is  quite  rudimentary  in  the  law  of 
evidence.     Schuster  v.  State,  80  Wis.  107. 

From  the  necessity  of  the  case,  it  is  difficult,  perhaps  impossible 
to  lay  down  any  precise  or  definite  rule  fixing  the  limits  of  such 
cross-examination.  Necessarily,  it  must  be  left  to  the  sound  dis- 
cretion of  the  trial  court,  subject  only  to  review  for  its  abuse. 

The  limit  of  cross-examination  of  ordinary  witnesses  is  not 
marked  with  any  great  accuracy  or  distinctness.  Questions  are 
frequently  allowed  which  strictly  do  not  refer  to  matters  about 
which  the  witnesses  testified  in  chief.  Great  latitude  is  given 
trial  courts  in  passing  upon  the  admissibility  of  such  questions; 
and  their  discretion  is  rarely  interfered  with  by  appellate  courts. 

It  must  be  remembered  that  the  privilege  given  a  defendant  in 
a  criminal  case  to  testify  for  himself  is  by  no  means  an  unmixed 
blessing.     There  are  cases  where  an  innocent  defendant  could  do 


340  LAW    OF    EVIDENCE    IN    CRIMINAL    CASES. 

himself  no  good,  and  might  do  himself  harm,  by  going  on  the 
witness  stand.  But  his  refusal  to  do  so  will  be  construed  to  his 
injury  by  the  average  juryman,  in  spite  of  any  instruction  the 
court  may  give  on  the  subject.  And  then,  if  he  does  testify,  his 
temptation  to  commit  perjury  will  be  considered  so  great  that  he 
will  rarely  be  credited  with  telling  the  truth.  But  if  he  cannot 
go  upon  tin-  stand  for  the  mere  purpose  of  stating  a  fact  which 
will  explain  some  suspicious  circumstance,  without  being  forced, 
uponjM*oss-examination,  to  lay  bare  the  whole  history  of  his  life, 
he  bad  better  keep  away  from  it, — unless,  indeed,  instead  of  hav- 
ing a  human  character,  he  is  a  miraculous  bundle  of  virtues,  with 
no  vice,  and  with  nothing  which  men  call  a  vice.  People  v. 
JA  <!■  /■.  75  Cal.  3S3. 

In  Prince  v.  Samo,  1  Ad.  &  El.  627,  the  court  says  that  a 
witness  of  the  plaintiff  cross-examined  as  to  declarations  of  the 
plaintiff  in  a  particular  conversation  cannot  be  re-examined  as  to 
unconnected  assertions  of  the  plaintiff  in  the  same  conversation, 
although  connected  with  the  subject  of  the  suit.  It  must  not, 
therefore,  be  assumed  that  cross-examination  in  part  of  a  conver- 
sation necessarily  lets  in  proof  of  the  whole  of  it.  This  case 
qualifies  the  language  of  the  court  in  The  Queerfs  Case,  2  Brod.  & 
B.  297,  where  Abbott,  Ch.  J.,  says:  "I  think  the  counsel  has  a 
right  on  re-examination  to  ask  all  questions  which  may  be  proper 
to  draw  out  an  explanation  of  the  sense  and  meaning  of  the 
expressions  used  by  the  witness  on  cross-examination,  if  they  are 
in  themselves  doubtful,  and  also  of  the  motive  by  which  the  wit- 
ness was  induced  to  use  these  expressions;  but  he  has  no  right  to 
go  further  and  introduce  matter  new  in  itself,  and  not  suited  to 
the  purpose  of  explaining  either  the  expressions  or  the  motives 
of  the  witness.  I  distinguish,"  he  says,  "between  a  conversation 
with  a  party  to  a  suit,  criminal  or  civil,  and  a  conversation  with  a 
third  person."     See  State  v.  Gedicke,  43  N.  J.  L.  86. 

The  formula  we  deduce  from  a  critical  examination  of  the  best 
considered  decisions  is  substantially  this:  upon  the  cross-examina- 
tion it  is  discretionary  with  the  trial  court  to  allow  inquiries  into 
collateral  matters  which  have  a  tendency  to  affect  the  credibility 
of  a  witness,  provided,  however,  that  the  responses  of  the  witness 
are  conclusive  and  are  not  subject  to  contradiction;  again  the  pre- 
vailing view  in  most  jurisdictions  restricts  the  cross-examination 
to  such  matter.-  as  were  elicited  upon  the  examination  in  chief  and 


THE    EXAMINATION    OF    WITNESSES.  341 

should  not  wander  beyond  this.  Here,  however,  we  encounter 
the  discretion  of  the  court  which  will  exercise  a  salutary  influence 
upon  any  hardships  the  rule  might  otherwise  impose  in  special 
instances.     State  v.  Turner,  76  Mo.  350;  State  v.  Saunders,  14 

Or.  300;  State  v.  Patterson,  88  Mo.  88,  57  Am.  Bep.  374;  State 
v.  McLaughlin,  76  Mo.  320;  State  v.  Douglass,  SI  Mo.  231;  State 
v.  Chamberlain,  S9  Mo.  129;  State  v.  Lurch,  12  Or.  99;  State  v. 
Porter,  75  Mo.  171. 

The  Federal  courts  adopt  the  rule  that  the  cross-examination 
must  be  limited  to  the  matters  touched  upon  in  the  direct  exam- 
ination, and  where  it  becomes  expedient  to  elicit  other  evidence 
the  witness  may  be  recalled  at  a  subsequent  stage  of  the  trial. 
The  party  so  recalling  a  witness  makes  such  witness  his  own. 
This  rule  obtains  in  Pennsylvania,  Indiana,  Iowa,  Illinois,  Ne- 
braska, and  some  other  states.  In  New  York  the  wide  discretion 
accorded  the  trial  court  as  to  the  order  of  proof  and  the  admission 
of  evidence  practically  annihilates  the  restriction  created  by  the 
rule,  and  this  view  of  the  matter  is  gradually  extending.  United 
States  v.  Mullaney,  32  Fed.  Eep.  370. 

§  222.  When  Answer  is  Conclusive.— It  is  among  the  famil- 
iar incidents  of  a  criminal  prosecution  that  where  the  accused 
takes  the  stand  as  a  witness  in  his  own  behalf,  the  state's  attorney 
will  seek  to  show  the  commission  of  previous  offenses;  and  on  his 
denial  of  their  commission,  it  frequently  happens  that  the  prose- 
cution seek  to  prove  the  untruthfulness  of  his  statement  by  the 
introduction  of  evidence  tending  to  establish  the  perpetration  of 
the  crime  denied.  Such  evidence  is  wholly  inadmissible.  The 
principle  which  governs  is  this:  The  answers  of  a  witness  to 
questions  which  tend  to  discredit  him  are  conclusive  if  such  ques- 
tions relate  to  collateral  matters. 

"Whether  he  participated  in  the  commission  of  the  other  offense 
was  not  a  material  inquiry  on  the  trial  of  this  indictment.  It  was 
simply  collateral,  and  the  object  of  it  was  by  cross-examination  to 
show  such  preceding  criminal  conduct  on  the  part  of  the  defend- 
ant as  would  lead  the  jury  to  disbelieve  the  witness,  or  to  reduce  the 
effect  they  might  otherwise  be  inclined  to  give  to  his  testimony. 
When  that  course  of  cross-examination  ha-  been  followed,  the  law- 
does  not  permit  the  party  adopting  it  to  introduce  further  and 
independent  evidence  to  prove  that  the  denial  of  the  witness  was 
false.     When  that  is  the  sole  effect  to  be  given  to  the  evidence, 


342  LAW    OF    EVIDENCE    IN    CRIMINAL    CASES. 

the  party  cross-examining  the  witness  is  concluded  by  his  answer. 
The  inquiry  cannot  be  further  extended  by  producing  testimony 
of  a  contradictory  nature.  The  rule  upon  this  subject  has  fre- 
quently been  made  a  matter  of  consideration  by  the  courts,  and  it 
is  now  well  established  that  to  entitle  the  party  interrogating  the 
witness  in  this  manner,  by  way  of  cross-examination,  to  introduce 
e\  idence  to  contradict  his  statements,  the  cross-examination  must 
be  directed  to  a  material  inquiry  in  the  case,  or  to  evidence  estab- 
lishing a  hostile  or  unfriendly  bias  against  the  party  in  the  mind 
of  the  witness.  Carpenter  v.  Ward,  30  K  Y.  243;  Plato  v.  Rey- 
nolds, 27  N.  Y.  586;  First  Baptist  Chwch  v.  Brooklyn  Fire  Ins. 
Co.  28  K  Y.  153;  Chapman  v.  Brooks,  31  K  Y.  75;  Stokes  v. 
People,  53  K  Y.  164,  13  Am.  Eep.  492;  Schultz  v.  Third  Ave. 
R.  Co.  89  K  Y.  248. 

If,  however,  the  false  answer  is  given  with  reference  to  a  mat- 
ter directly  relevant  to  the  issue,  the  cross-examiner  is  by  no  means 
concluded.     See  Greenfield  v.  People,  13  Hun,  242. 

The  conclusion  reached  in  the  celebrated  Stokes  case  has  never 
been  impaired  and  it  must  be  regarded  as  "settled  law"  that,  where 
the  defense  introduce  a  witness  who  after  giving  material  testi- 
mony in  the  case  is  cross-examined  by  the  prosecution  with  a  view 
to  impair  the  credibility  of  her  testimony  and  where  upon  such 
cross-examination  she  denies  having  stolen  certain  articles  of  person- 
al property  from  her  employers,  it  is  error  under  the  objection  of 
the  defendant  to  allow  the  prosecution  to  prove  the  false  character 
of  this  denial.     Stokes  v.  People,  sup?'a. 

The  principle  of  evidence  dimly  outlined  in  the  Stokes  case 
may  in  its  full  expansion  be  expressed  as  follows: 

"When  a  witness  on  cross-examination  has  answered  a  question 
which  is  relevant  only  to  test  his  accuracy  or  credibility,  his 
answers  to  such  question  cannot  be  contradicted  except  in  the  fol- 
lowing cases: 

"(1)  If  he  has  been  asked  whether  he  has  been  convicted  of  a 
crime  and  does  not  admit  it,  evidence  may  be  given  of  such  con- 
viction. 

"(2)  If  he  is  asked  a  question  tending  to  show  that  he  has  a 
feeling  of  enmity  toward  the  party  against  whom  he  is  called,  and 
if  he  denies  the  fact  about  which  he  is  asked,  he  may  be  contra- 
dicted by  other  witnesses." 

§  223.  Cross-Examination  of  Defendant  in  His  Own  Behalf. 
— Few  contentions  in  the  entire  range  of  criminal  jurisprudence 


THE    EXAMINATION    OF    WITNESSES.  343 

have  been  more  vehemently  discussed  or  critically  considered 
than  the  one  now  under  review.  The  pivotal  concept  in  all  prose- 
cutions for  crime,  is  to  the  effect  that  the  state  in  its  effort  to 
fasten  upon  one  of  its  citizens  the  stigma  and  the  infamy  of  a 
felonious  characteristic,  must  be  fully  prepared  to  satisfactorily 
prove  the  offense  it  alleges,  without  invading  the  constitutional 
prerogative  of  the  accused  which  relieves  him  from  the  necessity 
of  testifying.  These  constitutional  safeguards  are  emphasized  and 
given  great  prominence  in  the  organic  law  of  every  state  compos- 
ing confederation;  and  this  privilege  is  guaranteed  him  by  such 
positive  and  unequivocal  language,  as  we  find  embodied  in  the 
Federal  Constitution.  "No  person  shall  be  subject  to  be  twice  put 
in  jeopardy  for  the  same  offense;  nor  shall  he  be  compelled  in  any 
criminal  case  to  be  a  witness  against  himself."  Direct  and  posi- 
tive, as  this  language  seems,  it  has  been  a  prolific  source  of  legal 
agitation,  and  a  vast  amount  of  misconception  still  pervades  the 
entire  subject,  notwithstanding  the  most  vigorous  attempts  of  the 
judicial  mind  to  dispel  the  obscurity.  The  least  reflection  would 
seem  to  suggest  at  least  the  logical  formula  of  the  rule  that  should 
obtain.  The  state  must  prove  the  averments  and  implications  of 
its  indictment,  and  to  achieve  this  result,  it  cannot  rely  upon  the 
testimony  of  the  party  accused.  But  where,  under  the  emergen- 
cies that  confront  the  defendant,  he  for  any  reason  deems  it 
advantageous  to  take  the  stand  as  a  witness  in  his  own  behalf,  it 
is  not  a  perversion  of  common  sense  and  natural  justice  to  say  to 
the  state's  attorney,  "the  accused  may  swear  to  whatever  will 
exculpate  him,  but  you  on  cross-examination  cannot  deviate  from 
the  rule  that  confines  your  questionings  to  such  as  have  been  sug- 
gested by  the  examination  in  chief."  Such  a  ruling  as  this  offers 
•a  premium  on  crime  and  is  a  direct  encouragement  to  gross  per- 
jury, while  it  refuses  to  harmonize  witli  the  first  elements  of 
natural  justice.  The  accused  renounces  the  privilege  of  silence 
by  becoming  a  witness,  and  in  placing  himself  upon  the  stand,  he 
avowedly  and  by  implication  invites  and  challenges  such  question- 
ing as  may  be  pertinent  to  the  issues  involved — such  scrutiny  of 
his  conduct  as  may  be  fairly  deemed  within  the  scope  and  nature 
•of  the  indictment.  Fortunately,  these  assumptions  of  the  text  are 
fully  vindicated  by  the  entire  tenor  and  trend  of  modern  adjudi- 
cation. 

People  v.  Tice,  decided   by  the  New  York  court  of  appeals  in 


344  LAW    OF    EVIDENCE    IN    CRIMINAL    CASES. 

June,  1892,  reported  in  15  L.  R.  A.  669,  where  it  was  made  the- 
occasion  for  an  exhaustive  explanatory  note  by  James  G.  Green,, 
Esq.,  of  counsel  in  the  case. 

The  note  is  here  given  in  full,  as  furnishing  by  far  the  most, 
satisfactory  exposition  of  this  subject  anywhere  published. 

Note. — Cross-examination  of  the  defendant  in  criminal  cases. 
Under  statutory  limitations. 

Under  a  statute  providing  that  when  the  accused  offers  "himself  as  a  witness, 
he  may  be  cross-examined  by  the  counsel  for  the  people  as  to  all  matters  about 
which  he  was  examined  in  chief,"  a  defendant  in  a  criminal  case  who,  on  his 
direct  examination,  has  testified  as  to  particular  facts  only  cannot  be  cross-ex- 
amined generally  as  a  witness  in  the  case.     People  v.  O'Brien,  66  Cal.  602. 

If  the  accused  has  answered  questions  on  cross-examination  without  objec- 
tion, which  were  without  the  range  of  his  testimony  in  chief,  he  cannot  escape 
answering  a  further  question  asked  for  the  purpose  of  clearing  up  what  he  has 
already  said,  on  the  ground  that  it  is  foreign  to  his  direct  examination.  People 
v.  Sutton,  73  Cal.  243. 

He  may  be  examined  about  an  alias  and  a  conviction  of  felony  for  the  pur- 
pose of  discrediting  his  testimony,  although  not  referred  to  in  his  direct  exam- 
ination. People  v.  Meyer,  75  Cal.  383;  McFarland  and  Patterson,  JJ '.,  record  a. 
vigorous  dissent. 

In  People  v.  Fong  China,  78  Cal.  169,  it  was  held  that  testimony  in  chief  by 
the  accused  as  to  his  birth,  parentage,  education  and  business  opened  the  door 
wide  enough  to  allow  him  to  be  asked  on  cross-examination  whether  he  had. 
ever  been  arrested  before. 

Under  such  statute  a  defendant  who  testifies  that  he  did  not  commit  the  of- 
fense may  be  asked  on  cross-examination  any  question  showing  his  testimony 
to  be  false,  as  whether  he  wrote  a  certain  letter  which  contradicted  his  testi- 
mony.    People  v.  Rozelle,  78  Cal.  84. 

One  on  trial  for  stealing  property  which  he  testifies  he  purchased  of  a  certain 
person,  may  be  cross-examined  as  to  the  present  whereabouts  of  the  alleged 
vendor  and  the  prisoner's  efforts  to  procure  his  attendance  at  the  trial.  People 
v.  (June,  83  Cal.  374. 

In  Missouri  it  is  provided  by  statute  that  the  accused  "shall  be  liable  to  cross- 
examination  as  to  any  matter  referred  to  in  his  examination  in  chief"  [Rev. 
Stat.  §  1918],  which  is  held  to  restrict  the  cross-examination  to  the  matter  re- 
ferred to  in  the  direct  examination.  State  v.  Chamberlain,  5  West.  Rep.  386,  89 
Mo.  129;  State  v.  Trott,  36  Mo.  App.  29;  State  v.  Patterson,  3  West.  Rep.  226, 
88  Mo.  88;  State  v.  McLaughlin,  76  Mo.  320;  State  v.  Porter,  75  Mo.  171,  178; 
State  v.  McGraw,  74  Mo.  573;  State  v.  'Turner,  76  Mo.  350. 

But  it  is  not  reversible  error  if  the  matters  touched  upon  by  the  cross-exami- 
nation which  were  outside  the  scope  of  the  direct  examination  were  unimpor- 
tant and  could  not  affect  the  verdict.  State  v.  Brooks,  10  West.  Rep.  679,  92 
Mo.  542,  582;  State  v.  Beaucleigh,  10  West.  Rep.  377,  92  Mo.  490;  State  v.  Doug- 
lass, 81  Mo.  231. 

The  accused  cannot  be  cross-examined  as  to  previous  convictions  for  crime. 
State  v.  Brent,  100  Mo.  531. 

Objection  must  be  made  and  exception  saved  in  order  to  assign  error  on  & 


THE    EXAMINATION    OF    WITNESSES.  345- 

§  224.  Testimony  of  Witness  since  Deceased,  Given  on 
Former  Trial. — The  evidence  of  a  witness,  since  deceased,  on  a 

question  which  passes  the  statutory  limit  of  cross-examination.  State  v.  Mills, 
4  West.  Rep.  406,  88  Mo.  417. 

The  defendant  having  denied  having  a  cane  at  the  time  of  an  affray  may  be 
cross-examined  as  to  his  possession  of  a  cane  shortly  prior  thereto.  State  v. 
McKinzie,  102  Mo.  620. 

In  State  v.  Owen,  78  Mo.  367,  377,  it  was  held  proper  to  ask  on  cross-exami- 
nation of  the  prisoner,  "Is  this  all  you  are  willing  to  tell  the  jury  about  this 
case  ?" 

The  Missouri  statute  restricting  the  cross-examination  of  the  accused  to  the 
subject  of  the  direct  was  passed  subsequent  to  State  v.  Clinton,  67  Mo.  380,  28 
Am.  Rep.  506;  State  v.  Cox,  67  Mo.  392;  State  v.  Testerman,  68  Mo.  408,  and 
Stale  v.  Rugan,  68  Mo.  214,  which  cases  followed  a  different  rule. 

Under  the  Oregon  statute,  which  provides  that  an  "accused  when  offering 
his  testimony  as  a  witness  in  his  own  behalf  shall  be  deemed  to  have  given  to 
the  prosecution  a  right  to  cross-examination  upon  all  facts  to  which  he  has 
testified,  tending  to  his  conviction  or  acquittal,"  he  cannot  be  cross  examined 
as  to  irrelevant  matters  for  the  purpose  of  discrediting  him.  State  v.  Saunders, 
14  Or.  300. 

Thayer,  J.,  says,  however,  p.  309  :  "It  is  very  likely  that  if  the  statute  con- 
tained no  limitation  as  to  the  extent  of  the  cross-examination  of  a  defendant  in 
such  a  case,  he  would  occupy  the  same  footing  of  any  other  witness." 

In  State  v.  Lurch,  12  Or.  99,  103,  it  is  said  of  the  Oregon  statute  :  "This 
does  not  compel  him  to  be  a  witness  against  himself  beyond  such  cross-exami- 
nation. The  humane  principle  of  the  law  that  the  party  shall  not  be  com- 
pelled to  be  a  witness  against  himself,  is  as  effectually  violated  when  the  cross- 
examination  of  the  accused  is  extended  beyond  the  facts  to  which  he  has  testi- 
fied, as  it  would  be  if  he  were  to  be  called  and  made  to  testify  at  the  instance 
of  the  state." 

A  similar  limitation  on  the  range  of  the  cross-examination  of  a  defendant  in 
a  criminal  case  is  imposed  by  statute  in  Arizona  and  Louisiana. 

In  criminal  cases  the  cross-examination  of  witnesses  must  be  confined  to  the 
subject-matter  of  the  direct  or  to  that  closely  connected  therewith.  State  v. 
Wright,  48  La.  Ann.  589;  State  v.  Baker,  43  La.  Ann.  1168. 

In  Georgia  the  accused  cannot  become  a  witness  on  his  own  trial  but  may 
make  an  unsworn  statement  and  may  decline  to  answer  any  question  on  cross- 
examination.     Ga.  Code  1882  (Lester,  R.  &  II.  ed.)  §§  3854,  4637. 

In  absence  of  statutory  limitation. 
In  general. 
Whether  the  cross-examination  must  he  confined  to  the  range  of  the  testi- 
mony in  chief,  or  may  extend  to  the  matters  in  issue,  is  a  question  of  state  and 
noi  of  federal  law.     Ex  parte  Spies,  123  U.  S.  131,  31  L.  ed.  80. 

Judge  Cooley  in  his  work  on  Constitutional  Limitations,  p.  317,  says: 
"These  statutes  (giving  the  accused  the  right  to  testify)  cannot  be  so  construed 
as  to  authorize  compulsory  process  against  an  accused  to  compel  him  to  dis- 
close more  than  he  chooses.     If  he  does  testify  he  is  at  liberty  to  stop  at  any 


340  LAW    OF    EVIDENCE    IN    CRIMINAL    CASES. 

former  trial  of  the  same  case,  may  be  proven  on  a  subsequent 
i  rial.     His  deposition  then  taken  may  be  introduced  either  by  the 

point  he  chooses  and  it  must  be  left,  to  the  jury  to  give  a  statement,  which  he 
declines  to  make  a  full  one,  such  weight  as  under  the  circumstances  they  think 
it  entitled  to  ;  otherwise  the  statute  must  have  set  aside  and  overruled  the  con- 
stitutional maxim  which  protects  an  accused  party  against  being  compelled  to 
testify  against  himself  and  the  statutory  privilege  becomes  a  snare  and  a  dan- 
ger." 

Under  the  former  Michigan  statute  which  allowed  the  prisoner  to  make  an 
unsworn  statement  the  cross-examination  could  not  go  beyond  the  statement. 
People  v.  Thomas,  9  Mich.  314,  321;  Gale  v.  People,  26  Mich.  157. 

But  since  the  statute  of  1881  he  may  be  cross-examined  like  any  other  wit- 
ness on  matters  outside  of  his  testimony  in  chief.  And  this  although  he  was 
not  under  oath,  the  right  to  make  an  unsworn  statement  having  been  taken 
away  by  the  statute  of  1881.     People  v.  Robinson,  86  Mich.  415. 

It  is  held  in  Miller  v.  State,  15  Fla.  577,  that  the  statute  allowing  the  accused 
to  make  a  "statement  of  the  matters  of  his  or  her  defense,  under  oath,  before 
the  jury,"  does  not  render  one  making  such  statement  subject  to  cross  exami- 
nation. 

Of  the  view  taken  by  Judge  Cooley  it  is  said  in  Clark  v.  Jones,  87  Ala.  474, 
479:  "It  may  be  that  the  learned  author's  mind  was  specially  directed  to  the 
statute  of  Michigan  [now  repealed]  which  allowed  the  accused  to  make  an  un- 
sworn statement,  but  subject  to  be  cross-examined  on  such  statement.  If  the 
observations  apply  to  statutes  which  permit  a  defendant  to  become  a  witness 
sworn  and  examined  as  such,  we  cannot  concur  in  a  construction  which  auth- 
orizes the  accused,  after  exercising  his  option,  and  while  occupying  the  posi- 
tion of  a  witness,  to  disclose  and  to  decline  to  disclose  such  facts  as  may,  in 
his  opinion,  suit  his  convenience  and  interest,  leaving  his  refusal  to  make  full 
answers  merely  to  be  considered  by  the  jury  in  weighing  his  evidence." 

Tiie  general  rule  in  jurisdictions  where  there  is  no  statutory  limitation  is 
that  an  accused  person  testifying  in  his  own  behalf  is  to  be  cross-examined  like 
any  other  witness.  Connors  v.  People,  50  N.  Y.  240;  People  v.  Howard,  73 
Mich.  10;  Boyle  v.  State,  2  West.  Rep.  788,  105  Ind.  469;  Keyes  v.  State,  122 
Ind.  527;  Stab  v.  Pfefferle,  36  Kan.  90;  Fralich  v.  People,  65  Barb.  48;  Marx  v. 
People,  6:3  Barb.  618;  State  v.  Huff,  11  Nev.  17;  McKeone  v.  People,  6  Colo.  346; 
Chambers  v.  People,  105  III.  409,  413. 

Whether  the  range  of  the  cross-examination  will  be  restricted  to  that  of  the 
direct  will  depend  upon  the  rule  of  cross-examination  of  witnesses  which  pre- 
vails in  each  jurisdiction — that  is  whether  the  strict,  so-called  American  rule  is 
followed  or  the  liberal  English  rule. 

The  rule  that  the  cross-examination  of  any  witness  must  be  confined  to  the 
subject  opened  by  the  direct,  does  not,  however,  restrict  it  to  the  specific  facts 
of  the  direct  examination,  "for,  once  a  subject  is  entered  upon,  it  is  opened  to 
a  full  and  detailed  examination  on  cross-examination."  Boyle  v.  Stale,  2  West. 
Rep.  788,  105  Ind.  469. 

In  discussing  the  statute  enabling  an  accused  person  to  testify  in  his  own 
behalf,  Davis,  P.  J.,  mPeojilev.  Courtney,  31  Hun,  199  (affirmed,  94  N.  Y.  490) 
Bays,  obiti  >',  p.  202,  tbat  when  "a  person  accused  of  crime  elects  to  become  a 
witness  in  his  own  behalf,  he  occupies  the  same  position  as  any  other  witness 


TUE    EXAMINATION   OF    WITNESSES.  347 

•state  or  by  the  accused.  Such  proof  does  not  violate  defendant's 
-constitutional  right  to  "meet  the  witness  face  to  face."     And  his 

and  may  be  fully  examined  in  conformity  to  the  established  rules  of  evidence 
to  contradict  any  testimony  he  may  give,  or  to  impeach  or  impair  his  own 
credibility,  in  the  same  manner  as  that  of  any  other  witness  may  be  impaired." 

In  Ruloffw.  People,  45  X.  Y.  213,  221,  although  the  exception  was  to  com- 
ments by  the  trial  judge  on  the  failure  of  the  defendant  to  take  the  stand  in  his 
own  behalf,  Allen,  J.,  said  :  "If  sworn,  ...  he  (the  defendant)  will, 
under  the  law  as  now  understood  and  interpreted,  be  subjected  to  the  cross- 
examination  of  the  prosecuting  officer,  and  made  to  testify  to  any  and  all  mat- 
ters relevant  to  the  issue,  or  his  own  credibility  and  character,  and  under  pre- 
tense of  impeaching  him  as  a  witness,  all  the  incidents  of  his  life  brought  to 
bear  with  great  force  against  him.  " 

Cross  examination  of  an  accused  as  to  matters  not  touched  by  his  direct  ex- 
amination is  not  compelling  him  "to  be  a  witness  against  himself"  within  the 
constitutional  prohibition.     McGarry  v.  People,  2  Lans.  227. 

The  court  said,  p.  232:  "He  was  not  only  a  volunteer,  but  had  taken  the 
necessary  oath  to  enable  himself  to  testify,  'to  tell  the  truth,  the  whole  truth 
and  nothing  but  the  truth'  upon  the  whole  issue  of  traverse  between  himself 
and  the  people.  He  could  not  have  been  compelled  to  give  evidence  at  all,  but 
when  he  made  himself  a  witness,  ...  he  waived  the  constitutional  pro- 
tection in  his  favor  and  subjected  himself  to  the  peril  of  being  examined  as  to 
any  and  every  matter  pertinent  to  the  issue."  Reversed  on  another  point  with- 
•out  noticing  the  question  arising  on  the  defendant's  cross-examination.  Me- 
Garyx.  People,  45  X.  Y.  153. 

The  range  and  extent  of  cross-examination  is  within  the  discretion  of  the 
trial  judge,  subject  to  the  limitation  tbat  it  must  relate  to  facts  pertinent  to  the 
issue  or  which  tend  to  discredit  the  witness  or  impeach  his  moral  character. 
People  v.  Court  of  Oyer  d-  Terminer,  83  X.  Y.  436,  460;  People  v.  Clark,  3  Cent. 
Rep.  801,  102  X.  Y.  735;  People  v.  Hooghkerk,  96  X.  Y.  149,  163;  Territory  v. 
O'Hare,  1  X.  D.  30. 

When  the  accused  testifies  in  his  own  behalf  it  is  within  the  discretion  of  the 
trial  court  to  allow  cross-examination  on  the  whole  case,  although  not  covered 
by  the  direct  examination.     Bisque  v.  State,  6  Cent.  Rep.  331,  49  X.  J.  L.  249. 

An  accused  when  a  witness  in  his  own  behalf  is  subject  to  the  same  tests  as 
are  applied  to  other  witnesses,  i.  e.,  to  cross-examination  as  to  any  pertinent 
matter  and  impeachment  by  assailing  his  character  or  by  proof  of  contradictory 
statements.  Clarke  v.  State,  78  Ala.  474;  on  subsequent  appeal,  87  Ala.  71; 
Norris  v.  State,  S7  Ala.  85. 

An  accused  person  may  be  cross-examined  the  same  as  any  other  witness  to 
lay  the  foundation  for  his  impeachment.     State  v.  Red,  53  Iowa,  09. 

As  to  relevant  matters. 
A  defendant  in  a  criminal  proceeding,  who  elects  to  testify  in  his  own  be- 
half, waives  the  constitutional  protection  against  being  compelled  to  give  evi- 
dence against  himself  and  is  subject  to  cross-examination  on  all  matters  perti- 
nent to  the  issue,  State  v.  Wentworth,  65  Ml-.  234,  240,  20  Am.  Rep.  Q88;State 
v.  Witham,  72  Me.  531;  State  v.  Ober,  52  X.  II.  459,  13  Am.  Rep.  88;  Stale  v. 
Cohn,  9   Xev.  179;  Rains  v.  State,  88  Ala.  91;  People  v.  Bussey,  82  Mich.  49. 


,'Ab  LAW    OF    EVIDENCE    IN    CRIMINAL    CASES. 

testimony  then  given  may  be  proved,  if  necessary,  by  the  testi- 
mony of  one  who  was  present  and  heard  it,  who  may  state  its- 

Where  an  accused  person  as  a  witness  for  himself  broadly  denies  the  crime 
charged,  the  prosecutor  may  cross-examine  him  on  any  matter  relevant  and 
material  to  the  issue.  Thomas  v.  State,  1  West.  Rep.  309,  103  Ind.  419;  Com.v. 
Clark,  5  New  Eng.  Rep.  378,  145  Mass.  251. 

State  v.  Clinton,  67  Mo.  380,  decided  prior  to  the  limitation  of  the  cross-ex- 
amination of  an  accused  by  statute  held  him  subject  to  cross-examination  on 
any  matter  pertinent  to  the  issue.  So,  too,  Slate  v.  Rugan,  68  Mo.  214;  States. 
TesUrman,  68  Mo.  408,  and  State  v.  Cox,  67  Mo.  392. 

Cross-examination  of  an  accused  directed  against  the  accuracy  and  truthful- 
ness of  his  evidence  in  chief  is  proper.     People  v.  Hicks,  79  Mich.  457,  463. 

If  the  accused  in  a  testimony  in  chief  has  given  an  account  of  his  movements- 
upon  a  day  named,  it  is  proper  to  go  fully  into  the  subject  on  cross-examina- 
tion.    Boyle  v.  State,  2  West.  Rep.  788,  105  Ind.  469. 

An  accused  person  who  undertakes  to  tell  all  that  transpired  within  a  certain 
time  may  be  asked  on  cross-examination  if  a  certain  incident  happened  within 
that  interval,  although  he  has  made  no  reference  to  it  in  his  direct  examination. 
People  v.  Russell,  46  Cal.  121,  decided  prior  to  the  limitation  of  cross-examina- 
tion by  statute.     See  supra. 

It  is  proper  to  ask  one  on  trial  for  murder,  whose  plea  was  self-defense,, 
whether  he  did  not  flee  after  the  killing  and  whether  he  had  been  in  jail  or  en- 
gaged in  other  altercation.     Baker  v.  Com.  (Ky.)  Nov.  28,  1891. 

One  on  trial  for  rape  who  has  testified  that  he  was  not  suffering  from  gon- 
orrhoea at  the  time  of  the  offense  may  properly  be  cross-examined  as  to  his  pos- 
session and  use  of  certain  bottles  of  medicine  while  in  jail  after  his  arrest. 
People  v.  Glover,  71  Mich.  303. 

In  State  v.  Pritchett,  106  N.  C.  367,  it  was  held  proper  cross-examination  of 
one  on  trial  for  murder  to  ask  what  he  played  off  crazy  for,  referring  to  hie 
conduct  at  the  time  of  his  arraignment. 

One  indicted  for  murder,  who  has  testified  that  he  committed  the  homicide 
because  of  insulting  words  spoken  concerning  his  wife,  may  properly  be  asked 
on  cross-examination  whether  she  is  really  his  wife,  and  when  and  by  whom 
they  were  married.      Watson  v.  Com.  (Va.)  15  Va.  L.  J.  379. 

A  defendant  on  trial  for  adultery  having  denied  in  his  testimony  in  chief  the 
commission  of  the  offense  at  the  time  alleged,  or  at  any  other  time,  may  be 
asked  on  cross-examination  as  to  having  pleaded  guilty  to  such  an  offense  in 
another  state.     Com.  v.  Mosier,  135  Pa.  221. 

A  defendant  testifying  in  his  own  behalf  is  to  be  treated  the  same  as  any  or- 
dinary witness,  and  having  put  his  character  in  issue  may  be  cross-examined 
with  a  view  of  showing  that  it  is  different  than  represented  by  his  witnesses. 
State  v.  Merriman,  34  S.  C.  17. 

A  defendant  who  becomes  a  witness  for  himself  may  be  asked  about  previous 
statements  inconsistent  with  his  testimony  for  the  purpose  of  affecting  his  cred- 
ibility.    Com.  v.  Tollicer,  119  Mass.  312. 

In  this  ease  Ames,  /.,  said,  p.  315:  "By  availing  himself  of  the  right  to  take- 
the  stand  as  a  witness,  the  defendant  became  a  general  witness  in  the  case,  sub- 
ject to  the  same  tests  of  truthfulness  and  the  same  rules  as  to  examination  and 
cross-examination  as  are  applicable  to  all  other  witnesses.     Being  sworn  to  tell 


THE    EXAMINATION    OF    WITNESSES.  349 

6iil»>fance,  if  unable  to  repeat  its  words.  But  such  testimony 
must  be  placed  before  the  jury  as  nearly  as  possible  as  the  de- 

the  truth,  the  whole  truth  and  nothing  but  the  truth,  he  waived  all  right  to 
keep  anything  buck,  even  in  the  case  of  questions,  the  answers  to  which  would 
tend  to  criminate  himself." 

In  Com.  v.  Lannan,  13  Allen,  563,  Hoar,  J.,  says:  "The  defendant,  by  of- 
fering himself  as  a  witness,  waives  his  right  to  object  to  any  question  pertinent 
to  the  issue,  on  the  ground  that  the  answer  may  tend  to  criminate  him."  This 
language  is  criticised  as  obiter  and  not  justified  by  the  facts  of  that  case  by  a 
writer  in  4  Crim.  Law  Mag.  335,  who  maintains  that  the  question  there  allowed 
was  proper  on  the  ground  that  the  direct  examination  had  opened  the  way  for 
it,  and  who  also  maintains  that  the  true  rule  is  that  as  to  questions  asked  on 
the  cross-examination  which  are  entirely  foreign  to  the  testimony  in  chief,  the 
accused  when  a  witness  is  entitled  to  claim  his  privilege  against  self  crimina- 
tion,    p.  334. 

A  like  criticism  is  made  on  similar  language  in  Com.  v.  Mullen,  97  Mass.  545. 

The  cross-examination  of  a  defendant  in  a  criminal  prosecution  is  neither 
limited  to  the  range  of  the  direct,  nor  can  he  refuse  to  answer  questions  crimi- 
nating himself  of  the  very  offense  for  which  he  is  being  tried.  State  v.  Allen, 
107  N.  C.  805. 

In  Spies  v.  People,  (The  Anarchists'  Case),  10  West.  Rep.  701,  122  111.  1,  235 
it  is  said:  "If  a  defendant  offers  himself  as  a  witness  to  disprove  a  criminal 
■charge,  he  cannot  excuse  himself  from  answering  on  the  ground  that,  by  so 
doing,  he  may  criminate  himself."     So  held  in  Com.  v.  Morgan,  107  Mass.  199. 

An  accused  who  testifies  in  his  own  behalf  and  denies  the  commission  of  the 
offense  at  the  place  charged  may  be  asked  on  cross-examination  whether  he  has 
■committed  the  offense  charged  elsewhere,  and  he  will  not  be  excused  from 
answering  on  the  ground  that  his  answer  would  criminate  himself.  Com.  v. 
Nichols,  114  Mass.  285;  Slate  v.  Klitzke,  46  Minn.  343. 

A  witness  who  consents  to  testify  to  any  matter  tending  to  criminate  himself 
must  tell  all  relating  thereto.  State  v.  Fay,  43  Iowa,  651;  Slate  v.  Nichols,  29 
Miss.  357. 

"As  to  any  fact  or  circumstance  relevant  to  the  issue,  or  which  sheds  light 
upon  the  commission  and  character  of  the  offense,  though  iuculpatory,  he 
waives  his  constitutional  right  to  protection  against  being  compelled  to  give 
evidence  against  himself.  But  the  waiver  extends  no  farther  than  to  all  such 
facts  and  circumstances  as  may  tend  to  illustrate  the  particular-offense  charged." 
Clarke  v.  State,  78  Ala.  474,  480;  Cotton  v.  State,  87  Ala.  103;  Clarke  v.  State, 
£7  Ala.  71;  Norris  v.  State,  87  Ala.  85. 

"Within  these  limits,  the  fullest  cross-examination  should  be  allowed;  but 
its  range  into  inquiries  respecting  past  transactions  and  offenses,  separate  and 
distinct,  is  prohibited  by  the  constitutional  inhibition."  Clarke  v.  Slate, supra; 
Smith  v.  State,  79  Ala.,  21;  Clarke  v.  State,  and  Norris  v.  State,  supra. 

As  to  irrelevant  matters. 
An  accused  person  testifying  in  his  own  behalf  is  subject  to  the  same  cross- 
examination  as  any  other  witness,  the  range  of  which  on  irrelevant  matters 
rests  in  the  sound  discretion  of  the  trial  court.     Uanoff  v.  State,  37  Ohio  St.  178; 
Tanke  v.  Slate,  51  Wis.  404. 


350  LAW    OF    EVIDENCE    IN    CRIMINAL    CASES. 

ceased  witness  would  have  placed  it,  if  living  and  present.     The* 
fact  that  a  witness  on  such  previous  trial,  who  is  still  living,  is 

The  extent  to  which  a  defendant  may  be  cross-examined  as  to  his  previous 
residence  and  history  is  largely  in  the  discretion  of  the  trial  court.  State  v. 
Bomain,  44  Kan.  719. 

The  extent  of  the  cross-examination  of  an  accused  directed  against  his  credi- 
bility is  within  the  discretion  of  the  trial  court.  Cowley  v.  People,  8  Abb.  N.  C. 
1,  34,  affirmed,  83  N.  Y.  464,  38  Am.  Rep.  464,  without  noticing  this  point. 

Earl,  </.,  in  People  v.  Casey,  72  N.  Y.  394.  398,  says:  "When  a  prisoner 
offers  himself  as  a  witness  in  his  own  behalf,  he  is  subject  to  the  same  rules 
upon  cross  examination  as  any  other  witness.  He  may  be  asked  questions  dis- 
closing his  past  life  and  conduct  and  thus  impairing  his  credibility.  Such 
questions  may  tend  to  show  that  he  has  been  guilty  of  the  same  crime  as  that 
for  which  he  is  upon  trial;  but  they  are  not  on  that  account  incompetent. 
"When  he  offers  himself  as  a  witness,  and  he  seeks  to  take  the  benefit  of  the 
statute  which  authorizes  him  to  testify  in  his  own  behalf,  he  takes  the  hazard 
of  such  questions.  He  must  determine,  before  he  offers  himself,  whether  his 
examination  will  benefit  or  injure  him.  The  extent  to  which'sucb  an  examin- 
ation may  go  to  test  the  witness's  credibility  is  largely  in  the  discretion  of  the 
trial  court." 

The  questions  which  were  asked  the  defendant  in  this  case  were  as  to  other 
altercations  and  assaults  than  that  for  which  he  was  on  trial. 

This  case  is  followed  in  People  v.  Irving,  95  N.  Y.  541. 

An  accused  may  be  asked  on  cross-examination  whether  he  has  not  been  sus- 
pended from  his  office  as  an  attorney  and  counselor,  it  being  a  specific  fact 
having  a  tendency  to  affect  his  credit  as  a  witness.  People  v.  Reavey,  38  Hun, 
418. 

It  is  proper  to  cross-examine  an  accused  person,  for  the  purpose  of  impeach- 
ing his  credibility,  as  to  his  possession  of  certain  articles  that  would  connect 
him  with  nefarious  occupation,  such  as  counterfeiting.  People  v.  Giblin,  4  L. 
R.  A.  757,  115  N.  Y.  196. 

One  en  trial  for  violating  the  law  against  selling  lottery  tickets  may  be  asked 
on  cross-examination  whether  for  several  years  he  had  been  engaged  in  the 
business  of  selling  lottery  tickets.  People  v.  Noelke,  94  N.  Y.  137,  46  Am.  Rep. 
128. 

One  on  trial  for  seduction  may  be  asked  on  cross-examination,  for  the  pur- 
pose of  affecting  his  credibility,  as  to  having  sexual  intercourse  with  women 
other  than  the  prosecutrix.     People  v.  Eckert,  2  N.  Y.  Crim.  Rep.  470,  481. 

It  is  error  to  allow  cross-examination  of  an  accused  person  as  to  conduct, 
which  could  serve  no  purpose  except  to  prejudice  him  before  the  jury.  Oif- 
ford  v.  People,  87  111.  210;  Hayward  v.  People,  96  111.  492,  503. 

It  was  held  error  to  allow  one  on  trial  for  murder  to  be  asked,  on  cross-exam- 
ination, "Did  you  not  belong  to  the  Jesse  James  gang?"  Clarke  v.  State,  78 
Ala.  474,  481. 

In  People  v.  Pinkerton,  79  Mich.  110,  it  is  said:  "In  a  criminal  case,  we  do 
not  think  it  competent  to  compel  a  respondent/who  is  a  witness  to  answer  ques- 
tions, irrelevant  to  the  issue,  having  a  tendency  to  bring  in  other  charges. 
Whatever  latitude  is  proper  in  cross-examination  to  test  veracity,  it  cannot 


THE    EXAMINATION    OF    WITNESSES.  35 1 

absent  from  the  state,  or  beyond  the  territorial  jurisdiction  of  the 
court,  is  not  generally  ground  for  the  admission  of  his  previous 

properly  introduce  independent  issues,  against  the  person  who  is  both  witness 
and  respondent." 

In  Connors  v.  People,  50  N.  T.  240,  it  was  claimed  that  the  defendant  testify- 
ing in  his  own  behalf  was  protected  from  any  cross-examination  by  the  consti- 
tutional provision  "that  no  man  can  be  compelled  to  be  a  witness  against 
himself." 

This  was  held  to  be  untenable  as  an  objection  to  the  question,  "How  many 
times  have  you  been  arrested?"  Such  a  question  is  objectionable  as  incompe- 
tent to  affect  credibility  and  tending  to  degrade  the  witness  and  which  he  is 
privileged  from  answering.  People  v.  Brown,  72  X.  Y.  571,  28  Am.  Rep.  183. 
But  see  Brandon  v.  People,  42  X.  Y.  2G5;  People  v.  Bradt,  46  Hun,  445. 

In  People  v.  Brown,  supra,  it  was  held  improper  to  require  an  accused  to 
answer  on  cross-examination  how  many  times  he  had  been  arrested.  Church, 
Ch.  J.,  said;  "I  am  of  the  opinion  that  the  cross-examination  of  persons  who 
are  witnesses  in  their  own  behalf,  when  on  trial  for  criminal  offenses,  should  in 
general  be  limited  to  matters  pertinent  to  the  issue,  or  such  as  may  be  proved 
by  other  witnesses.  I  believe  such  a  rule  necessary  to  prevent  a  conviction  for 
one  offense  by  proof  that  the  accused  may  have  been  guilty  of  others." 

In  People  v.  Crapo,  76  N.  Y.  288,  32  Am.  Rep.  302,  a  question  to  the  defend- 
ant on  cross-examination  as  to  a  previous  arrest  was  held  incompetent,  although 
no  claim  of  privilege  was  made.  Church,  Ch.  J.,  said,  p.  200:  "The  discre- 
tion, which  courts  possess,  to  permit  questions  of  particular  acts  to  be  put  to 
witnesses  for  the  purpose  of  impairing  credibility  should  be  exercised  with 
great  caution,  when  an  accused  person  is  a  witness  on  his  own  trial.  .  .  . 
It  is  not  legitimate  to  bolster  up  a  weak  case  by  probabilities  based  upon  other 
transactions.  An  accused  person  is  required  to  meet  the  specific  charge  made 
against  him,  and  is  not  called  upon,  to  defend  himself  against  every  act  of  his 
life." 

Requiring  a  defendant  to  answer  on  cross-examination  as  to  a  previous  arrest 
on  a  charge  of  which  it  appears  he  was  acquitted  is  harmless.  People  v.  Ogle, 
7  Cent.  Rep.  49,  104  N.  Y.  511. 

An  accused  person  testifying  in  his  own  behalf  may  be  discredited  like  any 
other  witness  by  cross-examination  as  to  other  criminal  accusations.  Slate  v. 
Thomas,  98  N.  C.  599. 

It  is  not  competent  to  prove  by  cross-examination  other  crimes  than  that 
with  which  he  is  charged.     State  v.  Carson,  66  Me.  116. 

The  court  said,  p.  117:  "He  cannot  be  required  to  be  prepared  to  vindicate 
himself  against  any  alleged  crime  which  may  be  insinuated  in  the  form  of 
cross-examination,  and  of  which  he  has  no  previous  notice." 

It  is  error  to  cross-examine  an  accused  as  to'.the  commission  of  other  offenses 
than  that  for  which  he  is  on  trial,  although  of  the  same  kind.  Bailey  v.  Slate, 
67  Miss.  333. 

It  is  improper  to  cross-examine  a  defendant  as  to  previous  arrests  for  the 
purpose  of  impeaching  his  credibility  under  a  statute  allowing  witnesses  to  bo 
interrogated  as  to  convictions  of  offenses.     People  v.  Hamblin,  68  Cal.  101. 

He  may  be  asked  whether  he  has  been  convicted  of  other  offenses,  if  any 
witness  might  be  so  interrogated.     Slate  v.  Lawhorn,  88  N.  C.  634;  People  v.. 


■352  LAW    OF    EVIDENCE    IN    CRIMINAL    CASES. 

testimony,  unless  his  absence  is  occasioned  by  the  defendant. 
Bapalje,  Crim.  Proc.  §  278,  citing  Green  v.  State,  38  Ark.  304; 
Johnson  v.  State,  1  Tex.  App.  333;  Black  v.  State,  1  Tex.  App. 
368;  Hair  v.  State,  16  Neb.  601;  Pt'^te  v.  Murphy,  45  Cal.  137; 
/// \ .  n  wood  v.  State,  35  Tex.  587;  Pope  v.  State,  22  Ark.  372; 
State  v.  Cbtf/fc,  23  La.  Ann.  347;  Kean  v.  CW.  10  Bush,  190; 
Pound  v.  State,  43  Ga.  88;  .Avery  v.  tftafe,  10  Tex.  App.  199; 
Simms  v.  /State,  10  Tex.  App.  131;  People  v.  /S'%A,  48  Mich.  54; 
Collins  v.  Com.  12  Bush,  271;  Owens  v.  State,  63  Miss.  450; 
Unit'  d  States  v.  Beynolds,  1  Utah,  319. 

The  main  objection  urged  to  the  admissibility  of  such  testi- 
mony is,  that,  in  a  criminal  prosecution,  the  defendant  generally 
has  the  right  to  be  confronted  by  his  witnesses,  and  secondary 
evidence  of  what  an  absent  witness  swore  to  on  a  former  prose- 
cution is  not  admissible,  unless  it  is  clearly  proved  that  he  had 
permanently  removed  from  the  state.  Where  the  witness  is  de- 
ceased, the  authorities  hold,  in  uniform  accord,  that  his  testimony 

Johnson,  57  Cal.  571;  People  v.  Hovey,  29  Hun,  382,  affirmed,  92  N.  Y.  554,  with- 
out noticing  this  point;  State  v.  Curtis,  39  Minn.  357;  Com.  v.  Sullivan,  150 
Mass.  315;  State  v.  Probasco  Co.  46  Kan.  310;  Mitchell  v.  Com.  (Ky.)  12  Ky.  L. 
Rep.  45S;  Com.  v.  Bonner,  97  Mass.  587. 

As  to  communications  with  counsel. 

An  accused  person  testifying  in  his  own  behalf  cannot  be  required  on  cross- 
examination  to  disclose  communications  between  himself  and  his  attorney  to 
to  which  no  reference  was  made  in  his  testimony  in  chief.  State  v.  White,  19 
Kan.  444,  27  Am.  Rep.  137;  Buttenhofer  v.  State,  34  Ohio  St.  91,  32  Am.  Rep. 
-362. 

A  party  testifying  in  his  own  behalf  cannot  be  cross-examined  as  to  state- 
ments made  by  him  in  consultation  with  his  attorney.  Bigler  v.  Reyher,  43  Ind. 
112  (disapproving  Woburn  v.  Henshaw,  101  Mass.  193,  3  Am.  Rep.  333);  Barker 
t.  Kuhn,  38  Iowa,  392;  Eemenway  v.  Smith,  28  Vt.  701. 

In  Woburn  v.  Henshaw,  101  Mass.  193,  3  Am.  Rep.  333  (a  civil  case),  it  was 
held  that  a  party  who  is  a  witness  for  himself  is  liable  to  full  cross-examination 
.as  to  communications  between  himself  and  his  attorney. 

Re-cross-examination. 
It  seems  to  be  proper  to  recall  an  accused  person  who  has  testified  in  his  own 
behalf  for  the  purpose  of  a  re-cross-examination.     State  v.  Home,  9  Kan.  119. 
So  held  in  State  v.  Colin,  9  Nev.  179. 

Interrogation  by  the  court. 
In  Gill  v.  People,  3  Hun,  187  (affirmed,  60  N.  Y.  643,  without  opinion)  it  is 
said:     "Gill  chose  to  take  the  stand  as  a  witness  upon  his  own  behalf,  and  it 
then  became  perfectly  proper,  and  indeed  the  duty  of  the  court,  to  interrogate 
iim  as  fully  as  might  be  needful  to  test  the  truth  of  his  direct  testimony." 


THE    EXAMINATION    OF   WITNESSES.  353 

■upon  a  second  trial  is  admissible.  In  Horton  v.  State,  53  Ala. 
488,  such  testimony  taken  before  a  committing  magistrate  was 
-admitted  on  a  trial  of  the  same  cause  in  the  circuit  court,  the 
witness  being  satisfactorily  proved  to  be  dead,  following  a  like 
Tiding  in  Davis  v.  State,  17  Ala.  354.  The  basis  of  the  rule  is 
the  necessity  of  the  case,  to  prevent  the  defeat  of  justice;  the 
constitutional  objection  being  obviated  by  the  fact  that  the  defend- 
ant has  already  had  the  opportunity  to  confront  and  cross-exam- 
ine the  witness,  in  the  prior  procedure  involving  the  same  issue. 
Marler  v.  State,  67  Ala.  55;  Summons  v.  State,  5  Ohio  St.  325. 
In  Marler  v.  State,  supra,  the  testimony  given  on  the  former 
trial  by  a  witness  who  had  since  become  insane,  was  allowed  to 
be  introduced  in  evidence,  the  necessity  and  reason  of  the  case 
being  regarded  the  same  as  if  he  were  dead.  The  authorities  are 
fully  reviewed  in  that  decision,  and  the  true  reason  upon  which 
they  are  based  stated  to  be  the  necessity  of  preventing  the  mis- 
carriage of  justice;  which  applies  with  equal  force  to  a  witness 
who  is  shown  to  be  absent  from  the  state  for  an  indefinite  time, 
so  that  he  cannot  be  reached  by  the  process  of  the  courts  at  the 
time  of  the  trial.  It  is  possible,  it  is  true,  that  the  absent  witness 
may  return  at  some  day  in  the  future,  just  as  it  is  possible  that  an 
insane  man  may  be  restored  to  his  reason;  but  the  courts  cannot 
be  expected  to  delay  the  administration  of  justice,  waiting  for  the 
happening  of  so  indefinite  a  contingency. 

The  following  language  is  used  on  this  subject  by  Mr.  Starkie  : 
"It  is  an  incontrovertible  rule,  that  when  the  witness  may  be  pro- 
duced his  deposition  cannot  be  read,  for  it  is  not  the  best  evidence. 
But  the  deposition  of  the  witness  may  be  read,  not  only  when  it 
appears  that  the  witness  is  actually  dead,  but  in  all  cases  where 
he  is  dead  for  all  purposes  of  evidence;  as  where  diligent  search 
has  been  made  for  him,  and  he  cannot  be  found;  where  he  resides 
is  a  place  beyond  the  jurisdiction  of  the  court;  or  where  he  has 
become  a  lunatic,  or  attainted."     1  Stark.  Ev.  *409,  *110. 

In  Long  v.  Da/vis,  18  Ala.  801,  such  testimony  of  anon-resident 
witness  was  allowed  in  a  civil  case;  and  in  many  of  the  American 
states  its  admissibility  has  been  confined  to  eases  of  this  character 
In  England,  the  practice  on  this  point,  in  criminal  cases,  does  not 
seem  to  have  been  uniform,  the  general  rule,  however,  being  not 
to  admit  the  deposition,  or  secondary  evidence  of  any  witness, 
while  any  reasonable  hope  remained  that  the  witness  would  be  able 
23 


3^>4  LAW    OF    EVIDENCE    IN    CRIMINAL    CASES. 

to  attend  on  some  future  occasion.  1  Stark.  Ev.  (Sharswood's  ed.)» 
411,  note  Y.  The  more  recent  decisions  in  this  country  how- 
ever, support  the  contrary  view;  and  they  seem  to  us  to  better 
comport  with  both  reason  and  analogy,  as  well  as  to  more  effi- 
ciently promote  the  convenient  administration  of  justice.  It  is- 
the  settled  rule,  that  when  the  subscribing  witness  to  an  instru- 
ment is  out  of  the  state,  his  handwriting  may  be  proved,  whether 
in  a  civil  or  criminal  proceeding. 

The  following  authorities  are  directly  in  point  on  this  question 
in  criminal  cases  :  Sullivan  v.  State,  6  Tex.  App.  319;  People 
v.  Devine,  46  Cal.  45;  ShacMeford  v.  State,  33  Ark.  539;  Hurley 
v.  State,  29  Ark.  17.  And  the  following  in  civil  cases:  Magill 
v.  Kaufman,  4  Serg.  &  R.  317;  Howard  v.  Patrick,  3S  Mich. 
'795;  Carpenter  v.  Graff,  5  Serg.  &  E.  162;  Long  v.  Davis,  18- 
Ala.  801. 

The  reasoning  and  dicta  in  the  following  cases,  of  absent,  de- 
ceased, insane  and  sick  witnesses,  support  the  same  view:  Dray- 
ton v.  Wells,  1  Xott  &  McC.  409,  9  Am.  Dec.  718;  Reynolds  v. 
United  States,  98  U.  S..145,  25  L.  ed.  244;  Slusser  v.  Burling- 
ton, 47  Iowa.  300;  Summons  v.  State,  5  Ohio  St.  325;  Marler  v. 
State,  67  Ala.  55;  Rex  v.  Hogg,  6  Car.  &  P.  170;  Emlg  v.  Diehl, 
76  Pa,  359;  Miller  v.  Russell,  7  Mart.  X.  S.  266;  Lowe  v.  State,. 
S6  Ala.  47. 

In  People  v.  Murphy,  45  Cal.  137,  it  is  distinctly  held  that  a 
person  who  kept  notes  of  the  testimony  of  a  deceased  witness 
may  read  such  notes  to  the  jury  as  the  testimony  of  the  deceased 
witness.     Hair  v.  State,  16  Neb.  601. 

And  the  same  ruling  obtains  in  New  Hampshire.  "Any  per- 
son who  heard  the  respondent  testify  on  a  former  hearing,  may 
testify  what  he  then  stated  for  the  purpose  of  contradicting  his 
present  story.  Such  impeaching  testimony  is  not  confined  to 
such  witnesses  as  took  minutes  of  his  former  testimony."  State 
Archer,  54  N.  H.  465. 

In  cases  where  the  witness  was  living,  but  had  gone  without  the 
jurisdiction,  the  decisions  have  been  very  uniform  that  the  testi- 
mony is  not  admissible. 

In  Finn  v.  Com.  5  Rand.  (Va.)  701,  it  is  said  that  proof  of 
what  a  witness  said  upon  a  former  trial  is  inadmissible  in  a  crim- 
inal prosecution,  especially  where  he  has  only  removed  out  of  the 
state.     The  same  was  held  in  New  York,  in  the  case  of  People  v_ 


THE    EXAMINATION    OF    WITNESSES.  355 

Newman,  5  Hill,  295.  So  also  in  Brogy  v.  Com.  10  Gratt.  722; 
Bergen  v.  People,  17  111.  420,  65  Am.  Dec.  672;  State  v.  Jlouser, 
28  Mo.  233. 

I  have  found  no  case  where  the  testimony  of  a  witness,  absent 
but  living,  given  at  a  former  trial,  has  been  allowed  to  be  proved 
at  a  subsequent  trial.  There  are  cases  where  the  testimony  of  the 
witness  in  the  preliminary  examination  has  been  allowed  to  be 
proved,  when  the  witness  had  died,  but  none  where  he  had  gone 
from  the  jurisdiction.  And  I  think  the  law  must  be  held  to  be 
that  when  the  witness  is  living  he  must  be  produced,  or  his  testi- 
mony cannot  be  received  in  criminal  cases,  even  if  he  be  beyond 
the  jurisdiction  of  the  court  or  all  of  the  United  States.  The 
Constitution  of  the  United  States  provides  (Amendments,  art.  6), 
that  in  all  criminal  prosecutions  the  accused  shall  enjoy  the  right 
to  be  confronted  with  the  witnesses  against  him,  and  this  without 
exception.  Not  if  they  can  be  produced,  nor  if  they  be  within 
the  jurisdiction,  but  absolutely  and  on  all  occasions.  And,  if  the 
accused  has  this  right,  it  must  be  mutual,  and  exist  on  the  part  of 
the  government.  The  trial  would  not  be  a  fair  one  otherwise. 
Nor  can  it  fairly  be  maintained  that,  if  the  witness  has  once  been 
confronted  with  the  accused,  before  the  committing  magistrate, 
that  the  requirements  or  guaranties  of  the  constitution  are  an- 
swered. 

It  is  little  better  than  an  evasion  of  the  matter  to  say  that  if 
the  witness  has  been  present  at  the  preliminary  examination,  when 
the  real  question  is  whether  the  accused  shall  be  held  for  the 
action  of  the  grand  jury,  that,  therefore,  when  he  is  indicted, 
and  life,  liberty  or  property  are  at  stake,  the  right  no  longer  ex- 
ists. As  well  might  it  be  said  that  if,  in  the  complaint  before  the 
magistrate,  the  accused  was  informed  of  the  nature  and  cause  of 
the  accusation,  the  subsequent  indictment  need  not  state  the  accu- 
sation again.  The  fair  meaning  of  the  constitution  is  that 
wherever  and  whenever  he  is  put  on  his  final  trial  he  shall  be 
confronted  with  the  witnesses  against  him,  if  they  be  alive.  United 
States  v.  AngeU,  11  Fed.  Rep.  34. 

"What  a  witness,  since  dead,  has  sworn  upon  a  trial  between 
the  same  parties  may  be  given  in  evidence,  cither  from  the  judge's 
notes,  or  from  notes  that  have  been  taken  by  any  other  person 
who  will  swear  to  their  accuracy;  or  the  former  evidence  may  be 
proved  by  any  person  who  will  swear  from  his  memory  to  its  having 


356  LAW    OF    EVIDENCE    IN    CRIMINAL    CASES. 

1 :i  given."     Mansfield,  Oh.  -J.,  in  Doncaster  v.  Day,  3  Taunt. 

lv.l;.  See  also  Roberts  v.  State,  68  Ala.  515;  State  v.  Able,  65 
Mo.  357;  People  v.  Brotherton,  47  Cal.  388;  State  v.  Johnson,  12 
.\Y\.  121;  Dunlap  v.  State,  9  Tex.  App.  179;  State  v.  Wilson,  21 
Kan.  1S9. 

Paraphrasing  the  expression  of  Lord  Mansfield  the  paragraph 
might  read:  "The  testimony  of  a  witness  in  a  former  trial  since 
deceased,  or  beyond  the  jurisdiction,  or  for  any  adequate  reason 
unable  to  testify,  is  com  potent  if  it  satisfactorily  appears  that  the 
absence  or  disability  is  without  the  connivance  or  fault  of  the 
party  offering  the  evidence.  Provided  always  that  the  evidence 
offered  was  given  in  a  former  trial  of  the  same  action  between  the 
same  parties  and  affected  the  same  rights  in  issue." 

The  common  law  rule  (in  its  application  to  parties  examined  as 
witnesses)  has  been  incorporated  into  the  1ST.  Y.  Code  of  Civil 
Procedure,  §  830,  which  provides,  "where  a  party  has  died  since 
the  trial  of  an  action,  or  the  hearing  upon  the  merits  of  a  special 
proceeding,  the  testimony  of  the  decedent,  or  of  any  person  who 
is  rendered  incompetent  by  the  provisions  of  the  last  section, 
taken  or  read  in  evidence  at  the  former  trial  or  hearing,  may  be 
given  or  read  in  evidence  at  anew  trial  or  hearing  by  either  party, 
subject  to  any  other  legal  objection  to  the  competency  of  the  wit- 
ness, or  to  any  legal  objection  to  his  testimony  or  any  question 
put  to  him." 

It  is  pertinent  to  add  that  the  death  of  the  absent  witness  must 
be  satisfactorily  shown  and  that  mere  hearsay  evidence  calculated 
tn  establish  it  is  inadmissible.  State  v.  Wright,  70  Iowa,  152. 
See  Presumption  of  Death,  ante,  §  18. 

It  may  be  taken  as  the  rule,  that  where  a  party  is  deprived  of 
the  benefit  of  the  cross-examination  of  a  witness,  by  the  act  of  the 
opposite  party,  or  by  the  refusal  to  testify  or  other  misconduct  of 
the  witness,  or  by  any  means,  other  than  by  the  act  of  God,  the 
act  of  the  party  himself,  or  some  cause  to  which  he  assented,  that 
the  testimony  given  on  the  examination  in  chief  may  not  be  read. 
P<  ojpU  v.  ( 'ole,  43  N.  Y.  508;  Smith  v.  Griffith,  3  Hill,  333.  See 
Jrnrr<:'st  v.  Kissam,  7  Hill,  465.  And  the  rule  may  be  applied  to 
the  examination  of  a  witness  on  commission,  or  conditionally  out 
of  court,  when,  in  such  case,  the  party  desiring  the  benefit  of  a 
cross-examination  has  not  been  present  or  represented  at  the  tak- 
ing of  the  testimony,  and  had  no  opportunity  to  push  his  exaini- 


THE    EXAMINATION    OF    WITNESSES.  357 

nation,  or  to  know  the  refusal  of  the  witness  to  testify,  or  of  his 
neglect  to  answer  any  question,  or  of  other  like  misconduct  of  the 
witness.     Smith  v.  Griffith,  supra. 

§  225.  Testimony  of  the  Accused  on  his  Preliminary  Ex- 
amination.— Immediately  upon  his  arrest  the  party  accused  of 
crime  is  brought  before  a  committing  magistrate  and  examined 
with  a  view  to  determine  the  probability  of  his  guilt  or  innocence. 
The  testimony  elicited  on  such  examination,  so  far  as  it  regards 
the  accused,  is  not  competent  against  him  at  the  trial  unless  he  is 
duly  cautioned  that  any  statement  he  may  make  is  liable  to  be 
urged  against  him  in  his  subsequent  trial.  State  v.  Spier,  SO  JS". 
C.  600;  People  v.  Dorr,  61  Cal.  544;  Dickerson  v.  State,  48  Wis. 
288;  Farhas  v.  State,  60  Miss.  >47;  Rector  v.  Com,  SO  Ivy.  46S; 
State  v.  Glass,  50  Wis.  218,  36  Am.  Rep.  845. 

The  testimony  of  a  mere  witness  on  a  preliminary  examination 
may  be  given  against  him  where  subsequently  he  is  indicted  for 
offense.     People  v.  Mondon,  103  X.  Y.  211,  57  Am.  Eep.  709. 

We  have  previously  stated  the  general  rule  that  testimony 
either  by  witness  or  by  the  accused  given  in  a  former  trial  or 
investigation  which  is  compulsory  and  tends  to  criminate  them 
cannot  be  used. 

On  the  preliminary  examination  or  indeed  in  any  trial  whatever 
a  neglect  to  cross-examine  a  witness  assuming  the  presence  of  the 
right  and  opportunity  to  do  so  will  not  preclude  the  opposite 
party  from  introducing  the  testimony  of  the  witness  on  a  subse- 
quent trial.  Forrest  v.  Kissam,  7  Hill,  470;  Gomins  v.  Ildjidd, 
12  Hun,  375;  People  v.  Com.  43  X.  Y.  508. 

Generally  it  may  be  said  that  it  is  error  to  suffer  to  go  to  the 
-jury  any  evidence  given  by  a  witness  on  direct  examination  for 
the  people,  where  by  sudden  illness  or  by  death  of  such  witness, 
or  other  cause  without  the  fault  of  and  beyond  the  control  of  the 
prisoner,  he  is  deprived  of  his  right  of  cross-examination.  Peo- 
ple v.  Cole,  supra. 

Mr.  Greenleaf  says  in  section  163  of  his  work  on  Evidence: 
k'But,  where  the  testimony  was  given  under  oath  in  a  judicial 
proceeding,  in  which  the  adverse  litigant  was  a  party  and  where 
he  had  the  power  to  cross-examine,  and  was  legally  called  upon  so 
to  do,  the  great  and  ordinary  test  of  truth  being  no  longer  want- 
ing, the  testimony  so  given  is  admitted,  after  the  decease  of  the 
witness,  in  any  subsequent  suit  between  the  same  parties."     See 


358  LAW    OF    EVIDENCE    IX    CRIMINAL    CASES. 

also  Doncaster  v.  Day,  3  Taunt.  262;  Glass  v.  Beach,  5  Yt.  172; 
Leightner  v.  Wilke,  4  Serg.  &  K.  203;  Sheriden  v.  Smith,  2  Hill, 
53S. 

§  220.  Summary  of  the  Views  here  Stated. — The  most  crit- 
ical analysis  of  the  entire  topic  relating  to  the  examination  of  wit- 
nesses fails  to  disturb  the  well  recognized  principle  that  accords 
to  the  trial  court  a  wide  discretion  in  dealing  with  the  sub- 
ject. The  number  of  witnesses  sworn  to  prove  a  given  fact, 
the  extent  of  their  examination,  the  order  of  the  proof,  the  lati- 
tude indulged  as  to  leading  questions,  the  scope  of  the  cross- 
examination,  together  with  many  other  essentials  connected  with 
the  trial  of  a  criminal  case  combined  to  place  within  the  control 
of  the  presiding  judge  many  functions  that  tend  to  neutralize  all 
set  formulas  regarding  the  subject.  Especially  is  this  true  of  crim- 
inal prosecutions  where  life  and  liberty  are  at  stake,  the  previous 
analysis  has  shown  that  at  every  stage  of  the  trial,  evidence  relevant 
to  the  issues  will  be  admitted,  at  least  on  the  part  of  the  defendant. 
Xo  arbitrary  rules  relating  to  direct,  re-direct,  rebutting  or  surrebut- 
ting evidence  will  be  allowed  to  infringe  the  great  constitutional 
right  of  personal  liberty  and  the  American  juries  are  substantially 
a  unit  in  recognizing  the  constant  presence  of  that  indefinable 
thing  familiarly  known  and  previously  referred  to  as  the  "discre- 
tion of  the  court." 

Now  it  is  familiar  law  carrying  its  own  pregnant  commentary 
that  a  discretionary  order  or  ruling  will  not  be  disturbed  by  an 
appellate  tribunal  except  for  gross  and  palpable  abuse.  Is  it  not 
obvious,  then,  that  any  attempt  to  fetter  a  criminal  trial  by  the 
dogmatic  assertion  of  rules  as  to  the  examination  of  witnesses  is  a 
sheer  dissipation  of  energy?  It  is  with  this  theory  well  in  mind 
that  we  find  our  warrant  for  cautioning  the  practitioner  against 
too  great  a  reliance  upon  technique  in  criminal  prosecution. 


CHAPTER  XXXII. 


IMPEACHMENT  OF  WITNESSES. 


;§  227.  General  Rules  Relating  to. 

228.  Great  Latitude  Allowed  in  Cross-examination. 

229.  To  Wind  the  Attention  of  the  Witness  should  be  Called. 

230.  California  Code  Provisions  on  the  .Subject. 

231.  When  the  Impeachment  is  Effected. 

232.  Importance  of  Impeaching   Testimony. 

233.  Partial  Review  of  the  Decisions. 

^3-i.  When  Party  may  Contradict  his  own  Witness. 

235.  Statement  of  the  New  York  Rule. 

23G.  Inconsistent  Statements  may  be  Shown. 

237.  Discrediting  Party's  own  Witness  on  Groiind  of  Surprise. 

238.  Party  may  Impeach  a  Witness  he  is  Compelled  to  Call. 

239.  Specific  Acts  of  Immorality  cannot  be  Shown. 
2-40.  An  Examination  of  Authorities. 

241.  When  Declarations  Made  out  of  Court  are  Admissible. 

242.  Interpreter  may  be  Impeached. 

§  227.  General  Rules  Relating  to. — In  regard  to  the  im- 
peachment of  witnesses,  I  will  first  refer  to  the  earnest  contention 
so  familiar  to  the  annals  of  our  criminal  courts,  that  inquiries  as  to 
particular  acts  are  incompetent;  and  that  impeachment  can  be 
accomplished  only  by  evidence  of  the  general  reputation  for  truth 
-and  veracity.  As  a  corollary  to  this  first  contention  it  is  claimed 
that  such  evidence  cannot  be  admitted  under  any  circumstances 
without  first  inquiring  of  the  witness  sought  to  be  thus  impeached, 
whether  the  fact  was  true  or  not. 

The  general  rule  that  a  witness  cannot  be  impeached  by  con- 
tradicting him  as  to  collateral  matters,  is  well  understood.  But  it 
has  been  held,  that  the  feelings  of  a  witness,  and  his  disposition 
to  tell  or  conceal  the  truth  in  the  particular  suit  in  which  he  is 
called,  are  not  collateral  within  the  meaning  of  this  rule.  And 
he  may  therefore  be  impeached  by  showing  that  he  has  attempted 
to  procure  another  witness  to  give  false  evidence  in  the  same  suit. 
Folsom  v.  Brawn,  25  X.  II.  122;  Martin  v.  Farnham,  25  X.  11. 
199;  Atwood  v.  Welton,  7  Conn.  70;  Morgan  v.  Frees,  15  Barb. 
552;  Queen's  Case,  2  Brod.  &  B.  251. 

359 


3G0  LAW    OF    EVIDENCE    IN    CRIMINAL    CASES. 

If  sueli  evidence  is  admissible  to  impeach  an  ordinary  witness 
it  would  more  clearly  be  admissible  against  a  party  to  the  suit. 
An  attempt  by  a  party  to  sustain  his  claim  in  court  by  procuring 
a  witness  to  commit  perjury  in  support  of  it,  would  fairly  warrant 
an  inference  that  his  claim  was  not  founded  in  truth.  And  it 
must  have  been  upon  this  principle  that  in  State  v.  RoJifrischty 
12  La.  Ann.  382,  the  jn-osecution  was  allowed  to  prove  that  the 
defendant  had  attempted  to  bribe  one  of  the  witnesses  of  the  state 
to  swear  falsely.  Such  acts  by  a  party  would  seem  fairly  admis- 
sible as  circumstantial  evidence  which  the  jury  are  entitled  to 
consider. 

But  where  such  evidence  is  admitted  merely  for  the  purpose  of 
impeachment,  it  is  perhaps  the  established  rule,  that  the  wdtness 
sought  to  be  thus  impeached  must  first  be  interrogated  as  to  the 
fact.  It  was  so  held  in  the  Queen's  Case,  above  cited;  and  such  is 
the  general  current  of  authority  in  this  country,  though  there  are 
c  uses  where  the  rule  has  been  denied.  But  in  that  case  the  rea- 
son of  the  rule  was  stated  to  be,  that  the  witness  might  have  an 
opportunity  to  explain.  The  Chief  Justice  said:  "And  it  is  in 
our  opinion  of  great  importance  that  this  opportunity  should  be 
thus  offered,  not  only  for  the  purpose  already  mentioned,  but  be- 
cause if  not  given  in  the  first  instance  it  may  be  wholly  lost;  for 
a  witness  who  has  been  examined,  and  has  no  reason  to  suppose 
that  his  further  attendance  is  requisite,  often  departs  the  court 
and  may  not  be  found  or  brought  back  until  the  trial  be  at  an 
end." 

This  shows,  perhaps,  a  good  reason  for  the  rule.  But  where 
the  reason  fails,  the  rule  fails  also.  Martineau  v.  May,  IS 
Wis.  59. 

§  i'i>s.  Great   Latitude   Allowed  in  Cross-examination. — 

It  is  abundantly  settled  that  in  criminal  prosecutions  the  rules  of 
evidence  accord  to  the  cross-examiner  great  latitude  in  any  attempt 
to  impeach  the  character  of  the  witness.  In  a  very  recent  case 
the  witness  was  asked:  "Are  you  a  prostitute?"  Even  if  the 
witness  claimed  a  privilege,  the  question  should  have  been  allowed. 
enl.  Ev.  (4th  ed.)  §  445;  Stark.  Ev.  170;  Hall  v.  State,  40 
Ala.  699;  Com.  v.  Shaw,  4  Cush.  594,  50  Am.  Dec.  S13.  All  the 
authorities  hold  that  such  a  privilege,  if  any,  is  purely  personal 
witli  the  witness,  and  may  be  waived  by  the  witness  if  he  does- 
not  claim  it  himself.     1   Thomp.  Trials,  §  307;   1   Greenl.  Ev. 


IMPEACHMENT    OF    WITNESSES.  361 

§  451;  Whart.  Crim.  Ev.  §  465;  Clark  v.  Reese,  35  Cal.  SO;  Short 
v.  State,  4  Harr.  (Del.)  56S;  Sodusky  v.  JfcGee,  5  J.  J.  Marsh. 
621;  State  v.  Wentworth,  65  Me.  234,  20  Am.  Rep.  688;  Roddy 
v.  Finnegan,  43  Md.  400;  State  v.  Bilansky,  3  Minn.  246;  T<  w- 
comb  v.  State,  37  Miss.  3S3;  Fries  v.  Brugler,  12  X.  J.  L.  01,  21 
Am.  Dec.  52;  Richard  v.  Collins,  23  Larb.  441;  Southard  v. 
Rexford,  6  Cow.  255. 

The  foregoing  authorities  are  ample  warrant  for  the  formula 
that,  upon  cross-examination,  a  witness  may  be  asked  any  cmes- 
tion  which  tends  to  test  his  accuracy  or  credibility  or  to  impair 
his  credit  by  compromising  his  character,  but  the  extent  to  which 
such  examination  shall  be  allowed  is  in  the  discretion  of  the  court. 

But  it  is  well  settled  that  evidence  of  the  good  character  of  a. 
party  is  not  relevant  in  a  civil  action,  or  of  a  witness  in  an  action, 
until  evidence  of  the  bad  character  of  such  party  or  witness  may 
be  given,  or  unless  the  issue  involves  the  reputation  of  the  party. 

§  220.  To  What  the  Attention  of  the  AVitness  should 
Ibe  Called. — It  has  been  proper  at  all  times  to  discredit  a  witness 
by  proof  of  contradictory  statements  as  to  a  material  matter;  but 
it  could  not  be  done  until  he  had  been  cross-examined  as  to  the 
supposed  contradiction  in  such  a  manner  as  to  direct  his  attention 
to  the  matter  assumed.  The  rule  which  prescribes  this  condition 
rests  on  the  principle  of  justice  to  the  witness. 

The  tendency  of  the  evidence  was  to  impeach  his  veracity,  and 
common  justice  demands  that  before  his  credit  is  attacked  he 
should  have  an  opportunity  to  declare  whether  he  made  such 
statements  to  the  person  indicted,  and  to  explain  what  he  said, 
and  what  he  intended  and  meant  in  saying  it. 

When  this  opportunity  has  been  afforded  him,  justice  can  de- 
mand in  his  behalf  nothing  more,  and  the  reason  of  the  rule  is 
satisiied.  If  he  neither  admits  nor  denies  the  statement,  can  it  be 
proven  % 

The  decisions  of  the  English  courts  upon  this  question  are  con- 
flicting. If  the  matter  is  irrelevant,  the  proof  of  contradictory 
statements  is  certainly  inadmissible;  but  if  it  is  relevant,  the  weight 
of  the  English  authorities  favor  their  admission.     2  Phil.  Ev.  960. 

This  rule  is  sustained  by  American  cases.  Payne  v.  State,  60 
Ala.  80;  Dufresne  v.   Weise,  46  Wis.  290. 

It  is  competent  for  a  party  on  the  trial  to  prove  that  a  witness, 
on  the  part  of  his  adversary,  has  made  oral  statements  inconsi 


.362  LAW    OF    EVIDENCE    IN    CIIIMINAL   CASES. 

with  evidence  upon  a  material  question  given  by  such  witness  on 
the  trial,  for  the  purpose  of  impeaching  the  credibility  of  a  wit- 
ness, and  weakening  the  force  of  the  evidence.  But  it  is  requisite 
that  the  party  offering  the  impeaching  evidence  should  first  call 
the  attention  of  the  witness  to  the  circumstances  under  which  the 
statements  were  made,  that  he  may  have  an  opportunity  of  cor- 
recting the  evidence  given  on  the  trial,  or  of  explaining  the  ap- 
parent inconsistency  between  his  evidence  and  his  former  state- 
ments. 

The  reason  of  the  rule  applies  as  strongly  to  written  as  to  oral 
statements  made  by  the  witness;  and  when  his  evidence  is  sought 
to  be  impeached  by  written  statements,  alleged  to  have  been  made 
by  him,  the  writing  should  be  first  produced,  so  that  he  may  have 
an  opportunity  for  inspection  and  examination.  And  as  the  writ- 
ing is  the  best  evidence  of  the  statement  made  by  the  witness 
therein,  questions  as  to  the  contents  are  not  ordinarily  admissible. 
Queen's  Case,  2  Brod.  &  B.  2S7;  Newcomb  v.  Griswold,  24  N. 
Y.  298,  2  Phil.  Ev.  962;  Gaffney  v.  People,  50  K  Y.  416. 

§  230.  California  Code  Provisions  on  the   Subject. — The 

rules  as  to  the  impeachment  as  at  present  administered,  find  con- 
cise and  appropriate  expression  in  the  recitals  of  the  California 
Code : 

"A  witness  may  be  impeached  by  the  party  against  whom  he 
was  called,  by  contradictory  evidence,  or  by  evidence  that  his 
general  reputation  for  truth,  honesty,  or  integrity  is  bad,  but  not 
by  evidence  of  particular  wrongful  acts,  except  that  it  may  be 
shown  by  the  examination  of  the  witness,  or  the  record  of  the 
judgment,  that  he  had  been  convicted  of  a  felony.  A  witness 
may  also  be  impeached  by  evidence  that  he  has  made,  at  other 
times,  statements  inconsistent  with  his  present  testimony;  but  be- 
fore this  can  be  done,  the  statements  must  be  related  to  him. 
with  the  circumstances  of  times,  places,  and  persons  present,  and 
he  must  be  asked  whether  he  made  such  statements,  and  if  so, 
allowed  to  explain  them.  If  the  statements  be  in  writing,  they 
musl  be  shown  to  the  witness  before  any  question  is  put  to  him 
concerning  them.  Whenever  a  writing  is  shown  to  a  witness  it 
may  be  inspected  by  the  opposite  party,  and,  if  proved  by  the 
witness,  must  be  read  to  the  jury  before  his  testimony  is  closed, 
or  it  cannot  be  read  except  on  recalling  the  witness."  Cal.  Code 
Civ.  True  §§  2051,  2052,  2054.     See  also  MeDaniel  v.  Baca,  2 


IMPEACHMENT    OF    WITNESSES.  #    0G0 

<Cal.  326,  56  Am.  Dec.  339;  Floyd  v.  Wallace,  31  Ga.  668;  Shields 
v.  Cunningham,,  1  Blaekf.  86;  Lawrence  v.  L,anning,±  Ind.  194; 
#«&»«  c£  a  cT.  i?.  6k  v.  Fay,  16  111.  558,  63  Am.  Dec.  323; 
Foot  v.  Hunkins,  98  Mass.  523;  iVtfio  Orleans  Draining  Co.  v. 
DeLizardi,  2  La.  Ann.  281;  Gerrish  v.  P*fo?,  36  X.  H.  510; 
Charlton  v.  £7"/m,  4  Gratt.  5S;  Lamb  v.  Stewart,  2  Ohio,  230; 
.^^  v.  Harrison,  30  Yt.  219. 

§  231.  When  the  Impeachment  is  Effected. — Most  if  not  all 
•of  the  American  jurisdictions  hold  that  the  impeachment  of  a  wit- 
ness is  effected  if  sufficient  testimony  is  introduced  showing  that 
from  what  is  known  of  the  witness's  reputation  for  truth  and 
veracity  in  the  neighborhood  in  which  he  lives  his  averments  or 
statements  of  any  fact  under  oath  should  be  discredited.  State  v. 
Randolph,  24  Conn.  363;  Bogle  v.  Kreitzer,  46  Pa.  465;  Sergent 
v.  Wilson,  59  N.  H.  396;  United  States  v.  VansicMe,  2  McLean, 
219;  Warner  v.  Lockerby,  31  Minn.  421;  Amidon  v.  Hosley,  54 
Yt.  25;    Quinsigamond  Bank  v.  Hobbs,  11  Gray,  250;  Hillis  v. 

Wylie,  26  Ohio  St.  574;  Laclede  Bank  v.  Feeler,  109  111.  385; 
Shaw  v.  Emery,  42  Me.  59;  Atwood  v.  Lmpson,  20  X.  J.  Eq.  150; 
Lenox  v.  Fuller,  39  Mich.  268;  Teese  v. Huntingdon,  64  U.S. 23 
How.  2,  16  L.  ed.  479. 

In  Indiana  and  Iowa  and  Missouri  the  impeachment  is  effected 
by  showing  the  general  moral  character  of  the  witness  to  be  bad. 

Walton  v.  State,  $$  Ind.  9;  State  v.Fgan,  59  Iowa,  636;  State  v. 
Grant,  79  Mo.  113,  49  Am.  Rep.  218.  California  substantially 
follow>  New  York.  People  v.  Marhham,  64  tCal.  157,  49  Am. 
Hep.  700.  In  Illinois,  where  it  is  shown  that  the  general  charac- 
ter of  the  witness  among  his  neighbors  for  truthfulness  is  bad,  it 
is  erroneous  to  let  the  impeaching  witness  answer,  whether  he 
would  believe  such  witness  upon  oath.  Eason  v.  Chapman,  21 
111.  33.  The  knowledge  of  a  witness's  character  must  be  derived 
from  his  general  reputation. 

§  232.  Importance  of  Impeaching  Testimony.— When  a  wit- 
ness gives  material  evidence  it  is  always  important  to  ascertain 
•and  discover  how  much  weight,  or  reliance,  can  be  placed  upon 
his  testimony.  Whatever  may  weaken  or  tend  to  discredit  his 
evidence  is  important  and  material  and  necessarily  affects  the 
determination  of  the  issue.     Shepard  v.  Barker,  36  N.  Y.  517. 

If  the  testimony  of  the  witness  is  unassailed  by  any  discrediting 
•circumstances,   then  it  will  obviously  be  attended  with  greater 


304  LAW    OF    EVIDENCE    IN    CRIMINAL    CASES. 

effect  in  the  determination  of  the  controversy,  than  it  would  be,. 
if  he  should  be  shown  to  be  a  person  unworthy  of  full  credit. 
AYhatever  may  tend  to  sustain  or  support  a  witness,  is,  therefore, 
material  to  the  issue,  so  far  as  it  may  increase  the  confidence  to- 
be  placed  in  his  statement.  And,  likewise,  whatever  may  tend 
to  discredit  him,  and  in  that  manner  to  reduce  the  confidence  his 
evidence  may  deserve,  will  materially  affect  the  determination  of 
the  issue  in  controversy.  No  special  degree  of  materiality  to  cre- 
ate the  crime  of  perjury  has  been  defined  or  required,  but  all  that 
can  be  insisted  upon,  is  that  the  evidence  itself  shall  appear  to 
have  had  some  material  bearing  in  the  determination  of  the  case, 
and  whatever  may  tend  to  the  discredit  of  the  witness,  giving 
material  evidence,  must  be  regarded  as  within  this  rule.  In  Reg. 
v.  Overton,  2  Moody,  C.  C.  203,  it  was  held  that  everything  was 
material  that  affects  the  credit  of  the  witness,  and  that  every  ques- 
tion on  cross-examination  that  goes  to  the  credit  of  the  witness  is 
material.  In  ( 'om.  v.  Bonner,  97  Mass.  587,  the  same  conclusion 
was  reached. 

§  233.  Partial  Review  of  the  Decisions. — The  Tennessee 
supreme  court  held  in  St ory  v.  Saunders,  8  Humph.  600,  that  "a 
witness  cannot  be  confirmed  by  proof  that  he  has  given  the  same 
account  before,  even  though  it  has  been  proved  that  he  has  given 
a  different  account  in  order  to  impeach  his  veracity,  for  his  mere 
declaration  of  the  fact  is  not  evidence;"  although  exceptions  to 
this  rule  have  been  admitted. 

The  question  again  came  before  this  court  in  Possett  v.  Miller, 
3  Sneed,  70,  where  error  was  assigned  to  the  ruling  of  the  court 
below,  which  ruling  was  as  follows:  "Where  the  credit  of  a  wit- 
ness is  attacked,  upon  the  ground  that  he  had  made  statements 
inconsistent  with  the  statements  he  had  made  in  court,  testimony 
may  be  heard  to  show  that  at  other  times  and  on  other  occasions 
the  witness  had  made  statements  consistent  with  his  testimony 
given  in  court." 

It  will  be  observed  that  this  is  a  broad  statement  of  the  rule,, 
and  is  in  conflict  with  the  rule  stated  in  Story  Y.Saunders,  supra, 
unless  the  facts  of  the  case  brought  it  within  the  exceptions  of 
"special  circumstances,"  but  the  facts  are  not  given,  and  we  can- 
not see  whether  the  ''special  circumstances"  existed.  In  passing 
upon  this  ruling  at  the  circuit  court,  Judge  Caruthers  said:  "Upon 
this  question  there  is  a  very  great  conflict  in  the  authorities.     In 


IMPEACUMENT    OF    WITNESSES.  3G5 

1  Greenleaf  on  Evidence,  §  469,  such  evidence  is  declared  to  be 
inadmissible  unless  where  a  design  to  misrepresent  is  charged 
upon  the  witness  in  consequence  of  his  relation  to  the  party  or  to 
the  cause,  in  which  case  it  seems  it  maybe  proper  to  show  that  he 
made  a  similar  statement  before  that  relation  existed."  This  is  a 
statement  of  the  "special  circumstances"  which  would  take  the 
case  out  of  the  general  rule  as  stated  by  Judge  MeKinney  in 
Story  v.  Saunders,  swpra. 

Continuing,  the  court  said:  ""We  think  the  case  put  by  Mr. 
■Greenleaf  above  is  a  proper  one  for  the  admission  of  previous  con- 
sistent confirmatory  statements,  but  would  also  allow  it  in  all  cases 
where  the  evidence  given  in  court  is  impeached  by  proving  former 
contradictory  statements."  He  then  holds  that  there  was  no  error 
in  the  ruling  of  the  court  below. 

In  Queener  v.  Morrow,  1  Coldw.  134,  Judge  MeKinney,  after 
stating  the  rule  as  given  by  Greenleaf,  says:  "The  case  of  Dos- 
sett v.  Miller  sanctions  the  principle  that  evidence  of  previous 
consistent  statements  is  admissible  in  all  cases  where  the  testimony 
of  the  witness,  given  in  court,  is  sought  to  be  impeached  by  proof 
of  contradictory  statements."  He  then  says:  "The  abstract  prin- 
ciple announced  we  are  not  disposed  to  disturb,"  and  proceeds  to 
-dispose  of  the  case  on  that  basis,  but  limits  the  consistent  state- 
ments of  those  made  antecedent  to  the  impeaching  statements 
which  they  are  intended  to  meet. 

In  Third  Nat.  Bank  v.  Robinson,  1  Baxt.  484,  Judge  McFar- 
land  quotes  from  and  approves  the  cases  of  Dossett  v.  Miller  and 
Queener  v.  Morrow,  and  approves  the  act  of  the  court  below  in 
admitting  proof  of  the  consistent  statements  of  the  witness, 
although  the  facts  did  not  bring  the  case  within  the  exception  of 
"special  circumstances." 

In  Ha/yes  v.  Cheatham,  6  Lea,  10,  Judge  Cooper  refers  to  the 
cases  of  Dossett  v.  Miller,  (J Keener  v.  Morrow,  and  Third  Nat. 
Bank  v.  Robinson,  swpra,  and  says  the  rule  is  that  where  it  "is 
sought  to  destroy  the  credit  of  a  witness  by  proof  of  contradictory 
representations,  evidence  of  his  having  given  the  same  account  of 
the  matters,  at  a  time  when  no  motive  existed  to  misrepresent  the 
facts,  ougli'  to  be  received,  because  it  naturally  tends  to  inspire 
in  the  sworn  statement."  The  facts  of  that  case  brought  it  clearly 
within  the  exception  of  "special  circumstance.-,." 

In  Glass  v.Bennett,  89  Tenn.  481,  Chief  Justice  Turney  quoted 


366  LAW    OF    EVIDENCE    IN    CRIMINAL   CASES. 

the  rule  as  stated  in  Hayes  v.  Cheatham,  supra,  and  held  that 
proof  of  consistent  statements  was  properly  admitted.  It  did 
not  appear  in  that  case  that  the  facts  brought  it  within  the  excep- 
tion of  "special  circumstances,"  but  it  came  within  the  broad  rule 
laid  d«»\vn  in  Dossett  v.  Miller,  supra,  and  reaffirmed  in  Queener 
v.  Morrow  and  Third  Nat.  Bank  v.  Robinson,  supra.  His  con- 
clusion  was  that,  "whatever  may  be  the  rule  in  other  states,  and 
whatever  might  be  our  view  of  the  question  as  an  original  ques- 
tion, the  rule  in  this  state  is,  that  previous  consistent  confirmatory 
statements,  made  before  the  impeaching  statement,  are  admissible 
in  all  cases  where  the  evidence  given  in  court  is  impeached  by 
proving  former  contradictory  statements." 

In  Bounds  v.  Schwab,  5  Sneed,  594,  the  impeaching  statement 
was  made  under  oath  in  an  oral  examination  in  another  case,  but. 
in  reference  to  the  same  transaction.  Afterwards  the  deposition 
of  the  witness  was  taken,  and  his  testimony  did  not  agree  with, 
his  previous  testimony  in  the  other  case;  but  his  attention  was  not 
called  to  his  previous  testimony  so  as  to  give  him  an  opportunity 
to  explain  it.  It  was  then  sought  to  impeach  his  deposition  by 
proving  his  previous  contradictory  testimony.  It  was  held  that 
this  could  not  be  done,  because  his  attention  had  not  been  called 
to  the  previous  testimony  so  as  to  give  him  an  opportunity  to- 
explain  it. 

In  Nelson  v.  State,  2  Swan,  259,  the  impeaching  statement  was 
contained  in  the  testimony  of  the  witness  given  before  the  com- 
mitting magistrate,  and  signed  by  the  witness.  It  was  held  that 
this  impeaching  statement  was  not  admissible  to  contradict  the 
witness  unless  his  attention  had  been  called  to  it,  and  opportunity 
given  him  to  explain  it. 

In  limn  a,  oad  v.  Dike,  42  Minn.  273, 18  Am.  St.  Eep.  506,  the 
impeaching  statement  was  contained  in  a  deposition,  and  the  same 
rule  was  applied  in  the  Tennessee  cases  and  a  similar  reasoning 
supports  the  rule  that  the  minutes  of  the  evidence  given  by  wit- 
nesses on  a  preliminary  examination  cannot  be  used  on  the  trial 
of  the  defendant  to  impeach  such  witnesses.  State  v.  Adams,  78 
Iowa,  l".'±  Nor  can  a  witness  be  corroborated  by  proving  that 
on  other  occasions  he  made  statements  conforming  to  his  testi- 
mony, for  such  statements  are  but  hearsay;  nor  can  one  who  in- 
troduces a  witness  directly  attack  his  credibility  by  proving  facts- 
irrelevant  to  the  issue.     Madden  v.  State,  65  Miss.  176. 


IMPEACHMENT    OF   WJTNESSES.  36 T 

A  defendant  who  testifies  on  his  own  behalf,  on  the  trial  of  a. 
criminal  case,  may  be  impeached  in  the  same  manner  as  any  other 
witness;  but  the  jury  should  be  instructed  to  consider  impeaching 
testimony  as  affecting  only  his  credibility  as  a  witness,  and  not  as 
impairing  the  presumption  of  his  innocence.  Peck  v.  State,  80 
Tenn.  259. 

Judge  Grover  in  Real  v.  People,  42  N".  Y.  280,  says :  "A 
witness  introduced  by  the  accused,  and  who  gave  material  testi- 
mony in  his  favor,  was  asked  by  the  district  attorney  upon  cross- 
examination,  whether  he  had  not  been  in  the  penitentiary,  and 
how  long  he  had  been  there.  These  questions  were  objected  to 
by  the  counsel  for  the  accused  without  a  specific  statement,  calling 
attention  to  the  fact  of  their  being  record  evidence.  The  objec- 
tion was  overruled,  and  the  counsel  excepted.  The  witness  an- 
swered that  he  had,  and  stated  the  time,  adding,  that  he  was 
innocent  of  the  crime.  Waiving  the  question  whether  the  ground 
was  sufficiently  stated,  there  can  be  no  doubt  that  this  testimony 
was  material,  and  tended  to  prejudice  the  accused  by  impairing 
the  credit  of  the  witness,  and  if  incompetent,  the  judgment  should 
be  reversed.  The  counsel  now  insists,  that  this  point  was  decided 
in  favor  of  the  accused  in  J\rewco/uh  v.  Griswold,  24  jS".  Y.  298, 
by  this  court.  It  was  held  in  that  case,  that  it  was  error  to  over- 
rule the  objection  of  the  opposite  party  to  a  question  proposed 
upon  the  cross-examination  of  a  witness,  with  a  view  to  impair  his 
credit,  whether  he  had  not  been  convicted  of  petit  larceny,  and 
the  judgment  was  reversed  upon  this  ground,  the  court  holding, 
that  if  the  fact  was  at  all  admissible,  it  could  only  be  proved  by 
the  record.  The  same  rule  is  laid  down  in  volume  1  of  Greenleaf 
on  Evidence,  §  457,  where  it  is  further  added,  that  if  the  inquiry 
is  confined  in  terms  to  the  fact  of  his  having  been  subjected  to  an 
ignominious  punishment,  or  to  imprisonment  alone,  it  is  made  not 
for  the  purpose  of  showing  that  he  was  an  innocent  sufferer,  but 
that  he  was  guilty,  and  the  only  competent  proof  of  his  guilt  is 
the  record  of  his  conviction.  If  the  rule  thus  laid  down  by  this 
author  is  correct,  it  is  manifest  that  the  exception  in  the  present 
case  was  well  taken.  But  I  think  that  such  is  not  the  rule.  It  is 
well  settled,  that  for  the  purpose  of  impairing  the  credit  of  a  wit- 
ness, by  evidence  introduced  by  the  opposite  party,  such  evidence 
must  go  to  his  general  character.  That  proof  of  specific  acts  of 
immorality  is  not  competent,  see  authorities  cited  in  1  Greenl.  Ev. 


36S  LAW    OF    EVIDENCE    IN    CRIMINAL   CASES. 

§  4G1.  Yet  it  Is  held,  that  for  the  purpose  of  discrediting  his  testi- 
mony, the  witness  may  be  asked  upon  cross-examination,  as  to 
specific  facts.  1  Greenl.  Ev.  §  456.  This  shows  that  upon  a 
cross-examination  of  a  witness,  with  a  view  of  testing  his  credi- 
bility, inquiries  are  proper  as  to  facts  not  competent  to  be  proved 
in  any  other  way.  Such  inquiries  do  not  relate  to  the  issue  di- 
rectly upon  trial,  but  relate  only  to  the  credibility  of  the  witness. 
They  are  entirely  collateral  to  the  principal  issue.  As  to  the 
former  the  same  strictness  is  not  required  when  the  evidence  is 
confined  to  the  cross-examination  of  the  witness  introduced  by 
the  opposite  party.  In  such  examination  the  presumption  is 
strong,  that  the  witness  will  protect  his  credibility  as  far,  at  least, 
as  truth  will  warrant.  All  experience  shows  this  to  be  so.  It 
would  be  productive  of  great  injustice  often,  if  where  a  witness 
is  produced,  of  whom  the  opposite  party  has  never  before  heard, 
and  who  gives  material  testimony,  and  from  some  source,  or  from 
the  manner  and  appearance  of  the  witness,  such  party  should 
learn  that  most  of  the  life  of  the  witness  had  been  spent  in  jails, 
and  other  prisons  for  crimes,  if  this  fact  could  not  be  proved  by 
the  witness  himself,  but  could  only  be  shown  by  records  existing 
in  distant  counties,  and  perhaps  states,  which  for  the  purposes  of 
the  trial  are  wholly  inaccessible.  No  danger  to  the  party  intro- 
ducing the  witness  can  result  from  this  class  of  inquiries,  while 
•their  exclusion  might  in  some  cases,  wholly  defeat  the  ends  of 
justice.  My  conclusion  is,  that  a  witness  upon  cross-examination 
may  be  asked  whether  he  has  been  in  jail,  the  penitentiary,  or 
state  prison  or  in  any  other  place  that  would  tend  to  impair  his 
credibility,  and  how  much  of  his  life  he  has  passed  in  such  places. 
When  the  inquiry  is  confined  as  to  whether  he  has  been  con- 
victed, and  of  what,  a  different  rule  may  perhaps  apply." 

§  234.  When  Party  may  Contradict  His  Own  Witness — On 
this  important  subject,  a  recent  case  from  Indiana  may  be  regarded 
as  authority.  Upon  a  very  careful  investigation  of  the  subject,  the 
reas<  >ning  of  Judge  Elliott  seems  to  accurately  state  the  present  pos- 
ture of  the  law  in  reference  to  this  topic.  In  nearly  every  criminal 
prosecution,  owing  to  the  peculiar  circumstances  with  which  crime 
is  committed  and  its  perpetrators  known,  one  of  the  first  difficulties 
that  confront  the  prosecution,  is  the  character  of  the  witnesses  by 
which  it  is  required  to  prove  its  case.  It  would  grossly  hinder 
the  administration  of  justice,  if  the  prosecuting  attorney  was  ab- 


IMPEACHMENT    OF    WITNESSES.  369 

solutely  concluded  by  the  statement  of  witnesses  on  the  stand. 
Obviously,  this  would  be  a  monstrous  perversion  of  justice.  The 
subject  is  regulated  by  statute  in  many  jurisdictions,  and  the  ex- 
position given  it  by  the  Indiana  court,  gives  every  reason  that 
can  support  the  rule.  It  is  said :  "  It  is  no  doubt  true  that 
the  state  may,  in  the  proper  case,  contradict  its  witnesses  by 
evidence  of  contradictory  statements  made  out  of  court.  ■  Con- 
way v.  State,  118  Ind.  482.  Justly  limited  and  rightly  applied, 
the  statutory  rule  is  a  wise  and  salutary  one,  but  if  not  properly 
limited  and  employed  it  may  be  very  unjust  and  mischievous.  If 
a  party  may  call  a  witness,  elicit  from  him  only  what  is  expected 
and  what  is  not  prejudicial,  and  then  prove  statements  made  out 
of  court  by  the  witness,  great  harm  may  be  done  the  adverse 
part}-.  It  happens,  as  the  decisions  and  the  books  show,  that 
witnesses  make  careless  or  reckless  statements  out  of  court,  which 
they  will  not  make  under  oath,  and  such  statements  ought  not  to 
be  brought  out  by  the  party  who  produces  the  witness  unless  the 
testimony*  of  the  witness  is  prejudicial  to  him.  It  is,  indeed, 
doubtful  whether  they  can  be  brought  out  where  there  was  no 
obligation  on  the  party  to  call  the  witness,  and  the  testimony  was 
what  the  party  knew,  or  had  reason  to  believe,  the  witness  would 
give.  It  is  true  that  evidence  of  such  statements  is  theoretically 
evidence  affecting  credibility  only,  and  is  not  evidence  of  the 
facts  embraced  in  the  contradictory  statements;  but  nevertheless, 
evidence  of  contradictory  statements  does  often  influence  the  jury. 
The  limitation  placed  upon  the  statutory  rule  by  the  decisions  is 
a  wise  one.  That  limitation  is  this :  Where  the  witness  gives 
no  prejudicial  testimony  upon  that  point  to  which  the  contradic- 
tory statements  relate,  evidence  of  statements  made  out  of  court 
is  not  competent.  Where  the  party  calling  the  witness  is  sur- 
prised by  his  testimony,  or  where  it  is  prejudicial  then  contradic- 
tory statements  as  to  the  point  upon  which  the  evidence  is  preju- 
dicial is  competent,  otherwise  not.  Hull  v.  State,  93  Ind.  128; 
Conway  v.  State,  118  Ind.  482,  and  cases  cited;  Mill<  r  v.  Cook, 
124  Ind.  101.  In  the  case  last  cited  it  was  rightly  held  that  the 
contradictory  statements  must  relate  to  the  point  upon  which  the 
evidence  is  prejudicial,  and  so  we  hold  here."  Elliott  J.  in 
Rhodes  v.  State,  128  Ind.  189. 

§235.  Statement  of  the  New  York  Rule. — The  rule  upon 
this  subject  of  impeachment  has  frequently  been  made  a  matter 
24 


370  J. AW    OF    EVIDENCE    IN    CRIMINAL    CASES. 

of  consideration  by  the  New  York  courts,  and  it  is  now  well  estab- 
lished that  to  entitle  the  party  interrogating  the  witness  by  way 
of  cross-examination,  to  introduce  evidence  to  contradict  his  state- 
ments, the  cross-examination  must  be  directed  to  a  material 
inquiry  in  the  case,  or  to  evidence  establishing  a  hostile  or 
unfriendly  bias,  against  the  party  in  the  mind  of  the  witnesses. 
I 'arpt  nf,  r  v.  Ward,  30  K.  Y.  243,  245;  Plato  v.  Reynolds,  27  K. 
Y.  586;  First  Baptist  Church  v.  Brooklyn  F.  Ins.  Co.  28  K  T. 
153;  Chapman  v.  Brooks,  31  K  Y.  75,  87;  Stokes  v.  People,  53 
X.  Y.  1C.4,  175,  170;  Schultz  v.  Third  Ave.  E.  Co.  89  KY'.243. 

§  236.  Inconsistent  Statements  may  be  Shown.— The  party 
producing  a  witness  is  not  allowed  to  impeach  his  credit  by  evi- 
dence of  bad  reputation,  except  when  he  is  compelled  to  produce 
him  by  reason  of  the  nature  of  the  evidence  sought,  but  he  may 
contradict  him  by  other  evidence,  and  may  also  ask  him  whether 
he  lias  not  made,  at  other  times,  statements  inconsistent  with  his 
present  testimony.  Under  all  rules  of  reason  he  is  not  allowed  to 
contradict  his  witness  upon  any  particular  and  material  fact. 
Norwood  v.  Ki  nfield,  30  Cal.  393;  Rockwood  v.  Poundstone,  38- 
111.  L99;  Thorn  v.  Moore,  21  Iowa,  285;  Burkhalter  v. Edwards, 
If.  Ga.  593,  60  Am.  Dec.  744:  Cronan  v.  Roberts,  65  Ga.  678; 
Gray  v.  Gray,  3  Litt.  (Ky.)  465;  Shelton  v.  Hampton.  28  X.  C. 
i'!i'.:  Warren  v.  Gabriel,  51  Ala.  235;  Broom  v.  Osgood,  25  Me. 
505;  Bradford  v.  Bush,  10  Ala.  386;  Hall  v.  Houghton,  37  Me. 
411;  Wolfe  v.  Hauver,  1  Gill,  84;  Brolley  v.  Lapham,  13  Gray, 
294;  Olmstead  v.  Winsted  Bank,  32  Conn.  278,  85  Am.  Dec.  260; 
Brown  v.  Wood,  19  Mo.  475;  Swamscot  Mach.  Co.  v.  Walker,  22 
X.  II.  4 r> 7 ;  Seavy  v.  Dearborn,  19  K.  H.  351;  Skellinger  v. 
Howell,  8  N.  J.  L.  383;  Lawrence  v.  Barker,  5  Wend.  301;  Wins- 
ton v.  Moseley,  2  Stew.  (Ala.)  L37;  Hunter  v.Wetsell,  84  ZTST.  Y- 
549,  38  Am.  Rep.  544;  Hunt  v.  Fish,  4  Barb.  .".24;  Thompson  v. 
Blanchard,  4  X.  Y.  303;  People  v.  Skeehan,43  Barb.  217;  K<  ut- 
<j>  n  v.  Parks,  2  Sandf.  60;  Pickard  v.  Collins,  2)5  Barb.  444; 
Parsons  v.  Suydam,  3  E.  D.  Smith,  276;  Boh  v.  Vincent,  12  Abb. 
Pr.  137;  Bemis  v.  Kyle,  5  Abb.  Pr.  X.  S.  232;  67*  v.  Huyler, 
9  Jones  &  S.  190;  Farr  v.  Thompson,  Cheves,  L.  37;  Stockton  v. 
Demuih,  7  Watts,  39;  Hice  v.  Cox,  34  X.  C.  315. 

So  a  party  may  contradict  his  own  wdtness  by  evidence  of  state- 
ments made  out  of  court.  The  only  limitation  is  that  the  witness 
shall  not  be  contradicted  unless  he  has  given  testimony  prejudicial 


IMPEACHMENT    OF    WITNESSES.  371 

to  the  party  by  whom  he  was  called.  Judy  v.  Johnson,  16  I  ml. 
371;  Hill  v.  Goode,  18  Ind.  207;  JLdl  v.  State,  93  End.  128.     In 

Hill  v.  Goode,  supra,  the  court  said,  "that  a  party  may  prove 
previous  statements  of  his  own  witness  contradictory  to  those 
sworn  to  on  the  given  trial."  Other  courts  have  so  decided. 
Blackburn  v.  Com.  12  Bush,  181;  Champ,  v.  Com.  2  Met.  (Ky.) 
17;  Dear  v.  Knight,  1  Fost.  &  F.  433;  Hemingway  v.  Garth,  51 
Ala.  530;  Cora,  v.  Donahoe,  133  Mass.  407;  White  v.  State,  10 
Tex.  App.  381. 

A  party  cannot,  after  examining  a  witness,  give  in  evidence  his 
former  testimony  and  declarations,  ostensibly  to  discredit  him,  but 
in  truth  to  operate  an  independent  evidence.  Smith  v.  Price,  8 
Watts,  417. 

He  is  not  at  liberty  to  discredit  his  own  witness  by  showing  his 
former  declarations  on  the  same  subject  {Sanchez  v.  People,  22 
!N\  Y.  117);  though  he  may  show  the  truth  of  the  facts  by  other 
witnesses.  The  fact  that  the  other  side  has  also  examined  the 
witness  in  chief  does  not  change  the  rule.  Ellicvtt  v.  Pearl,  35 
U.  S.  10  Pet.  412,  9  L.  ed.  475. 

The  state  cannot  impeach  her  own  witness.  Quinn  v.  State, 
14  Ind.  589. 

But  it  has  been  held  in  North  Carolina  that  the  attorney  gen- 
eral may  produce  evidence  to  discredit  a  witness  for  the  common- 
wealth. State  v.  Norris,  2  1ST.  C.  438.  But  see  Brown- s  Cases, 
3  City  Hall  Rec.  151;  Queen  v.  State,  5  Harr.  &  J.  232;  1  Koscoe, 
Crim.  Ev.  159. 

Texas  Code  of  Criminal  Procedure,  article  755,  provides  that 
"  the  rule  that  the  party  introducing  the  witness  shall  not  attack 
his  testimony  is  so  far  modified  that  any  party,  when  facts  stated 
by  the  wdtness  are  injurious  to  his  cause,  may  attack  his  testimony 
in  any  manner,  except  by  proving  his  bad  character;"  but  before 
this  rule  can  be  applied,  the  witness  must  have  stated  some  fact 
in  evidence  which  was  injurious  to  the  party  in  whose  behalf  he 
was  testifying;  and  it  is  not  sufficient  that  he  merely  made  a,  state- 
ment different  from  that  which  the  party  hud  reason  to  and  did 
believe  he  would  make.     Bennett  v.  State,  24  Tex.  App.  7-'). 

The  rule  that  a  party  cannot  discredit  his  own  witness  by  prov- 
ing that  he  had  made  contradictory  statements  at  other  times, 
does  not  apply  to  those  eases  where  the  party  is  under  the  neces- 
sity of  calling  the  subscribing  witness  to  an  instrument.     Dennett 


372  LAW  OF  EVIDENCE  IN  CRIMINAL  CASES. 

v.  Bow,  17  Me.  10;  WJiitmom  v.  Morey,  63  K  Ii.  448;  1  Roscoe, 
Orim.  Ev.  160;  Best,  Ev.  (Chamberlayne's  ed.)  §  644. 

§  237.  Discrediting  Party's  own  Witness  on  Ground  of 
Surprise. — A  party  who  calls  a  witness,  and  is  taken  by  surprise 
by  his  unexpected  and  unfavorable  testimony,  may  interrogate 
him  in  respect  to  declarations  and  statements  previously  made  by 
him,  which  are  inconsistent  with  his  testimony,  for  the  purpose  of 
refreshing  his  recollection,  and  inducing  him  to  correct  his  testi- 
mony or  explain  his  apparent  inconsistency,  and  for  such  purpose 
his  previous  declarations  may  be  repeated  to  him,  and  lie  may  be 
called  upon  to  say  whether  they  were  made  by  him.  In  case  the 
witness  denies  having  made  such  statements,  or  his  answer  is 
ambiguous  concerning  them,  it  is  not  competent  for  the  party 
calling  him  to  prove  them  by  other  witnesses.  Hurley  v.  /State, 
4L.  R.  A.  161,46  Ohio  St.  320. 

In  the  case  last  cited  Mr.  Justice  Williams  collates  many  valu- 
able authorities  in  the  course  of  his  opinion  and  subjects  them  to 
analysis  in  the  following  language:  "In  the  case  of  Com.  v.  Welsh, 
4  Gray,  535.  it  is  held  that,  'A  witness  who  has  testified  in  chief 
that  he  does  not  know  certain  facts,  cannot,  although  he  shows  a 
disposition  to  conceal  what  he  knows,  be  asked  by  the  party  call- 
ing him  whether  he  did  not  on  a  former  occasion  swear  to  his 
knowledge  of  those  facts.'  In  the  course  of  the  opinion,  Shaw, 
Ch.  >/..  said:  'The  evidence  of  what  the  witness  testified  before 
the  grand  jury  ought  not  to  have  been  received.  It  bore  upon 
no  question  pertinent  to  the  issue.  ...  It  could  only  be  to 
disparage  the  witness,  and  show  him  unworthy  of  credit  with  the 
jury,  which  was  inadmissible.'  The  same  rule  was  followed  in 
the  case  of  People  v.  Jacobs,  49  Cal.  3S4.  On  the  trial  of  a  prose- 
cut  ion  for  rape  a  witness  was  called  by  the  prosecution  to  prove 
threats  by  the  prisoner.  The  witness  testified  the  prisoner  made 
no  threats,  and  the  prosecutor  was  then  permitted  to  call  a  witness 
who  testified  that  in  a  conversation  with  him  the  former  witness 
stated  the  prisoner  had  made  threats.  For  the  admission  of  this 
evidence  the  judgment  was  reversed. 

"In  Melluish  v.  Collier,  14  Jur.  621,  15  Q.  B.  878,  it  is  held 
that  '  where  a  witness  gives  evidence  adverse  to  the  party  who 
calls  him.  he  may  be  asked  whether  he  has  not  given  a  different 
account  of  the  matter  in  question  before  the  trial,  but  if  the  wit- 
ness denies  it,  the  person  to  whom  he  gave  that  account  cannot 


IMPEACHMENT    OF   WITNESSES.  373 

be  called  to  contradict  him;'  and  'Where  a  witness  gives  evidence 
of  a  fact  adverse  to  the  party  who  calls  him,  other  witnesses  may 
be  called  to  disprove  the  fact,  if  it  be  relevant  to  the  issue  in  the 
cause.'  See  also  Holdsworth  v.  Dartmouth,  2  Mood.  &  K.  153; 
Allay  v.  Hutchings,  2  Mood.  &  K.  358,  note;  Winter  v.  Butt,  2 
Mood.  &  R.  357. 

"  This  is  the  doctrine  maintained  by  a  long  line  of  American 
cases,  among  them  the  following:  Thompson  v.  JSlanchard,  4  X. 
T.  311;  Pollock  v.  Pollock,  71  K  Y.  137;  Coulter  v.  American 
Merchants  U.  Exp.  Co.  56  K  Y.  58S;  Nichols  v.  White,  85  ]Nr. 
Y.  531;  Gadsby  v.  Dyer,  91  N.  C.  312;  Becker  v.  Koch,  101  K 
Y.  394;  Cox  v.  Eayres,  55  Yt.  21;  Bauskett  v.  Keitt,  22  S.  C. 
187;  BurkJialter  Y.Edwards,  16  Ga.593,  60  Am.  Dec.  711;  Bal- 
timore <&  0.  R.  Co.  v.  State,  41  Md.  268;  Bullurd  v.  Pearsall, 
53  K  Y.  230;  Stearns  v.  Merchants  Bank  of  Cleveland,  53  Pa. 
490;  Queen  v.  State,  5  liar.  &  J.  232;  Adams  v.  Wheeler,  97 
Mass.  67. 

"  Statutes,  similar  in  their  provisions  to  the  English  Common 
Law  Procedure  Act,  have  been  adopted  by  Massachusetts,  Ken- 
tucky, Georgia,  and  some  of  the  other  states.  The  enactment  of 
such  statutes  is,  itself,  a  recognition  of  the  necessity  of  a  resort  to 
legislation  to  accomplish  the  change  in  the  rule  thereby  effected, 
and  has  been  so  regarded  by  the  courts  of  the  states  where  they 
have  been  adopted." 

Proof  that  a  witness  had  made  material  false  statements,  which 
are  relied  on  as  proving  him  unworthy  of  credit,  will  not  author- 
ize the  party  calling  him  to  introduce  evidence  of  his  general  rep- 
utation for  truth.  Crown  v.  Mooers,  6  Gray,  451;  Jluscoe,  Crim. 
Ev.  160. 

A  party  may  prove  the  previous  contradictory  declarations  of 
a  witness  whom  he  has  called  to  the  stand,  when  it  is  established 
that  he  was  surprised  at  his  testimony,  and  was  not  guilty  of  col- 
lusion or  bad  faith,  and  that  the  witness  was  adverse  to  him 
(Ilurlburt  v.  Bellows,  50  N.  H.  105;  Whitman  v.  Morey,  63  N. 
H.  448;  Craig  v.  Grant,  6  Mich.  453;  Campbell  v.  State,  23  Ala. 
77;  Corn.  v.  Starkweather,  10  Cusli.  60;  Stearns  v.  Merchants 
Bank  of  Cleveland,  supra;  People  v.  Safford,  5  Denio,  112; 
Coulter  v .  American  Merchants  I  .  Exp.  ( '<>.  supra ;  People  v. 
Jacobs,  49  Cal.  384;  Dunn  v.  Dunnaher,  87  Mo.  597;  Hunt  v. 
Fish,  4  Barb.  324;  Burkhalter  v.  Edwards,  supra)  or  where  it 


374  LAW    OF    EVIDENCE    IN    CRIMINAL    CASES. 

is  shown  to  the  satisfaction  of  the  court  that  he  lias  been  deceived 
by  the  fraud  or  artifice  of  such  witness;  and  even  then  the  foun- 
dation must  first  be  laid  for  such  evidence  by  calling  the  attention 
of  the  witness  to  the  time,  place  and  person  before  whom  such 
supposed  contradictory  declarations  were  made,  and  affording  him 
opportunity  for  explanation.  Dimlap  v.  Richardson,  63  Miss. 
447. 

§  238.  Party  may  Impeach  a  Witness  lie  is  Compelled  to 
Call.  There  is  quite  an  array  of  authority  for  the  proposition 
that  where  a  party  is  compelled  to  call  a  certain  witness  he  may 
both  contradict  and  discredit  him.  Sho?*ey  v.  Hussey,  32  Me.  579; 
Cox  v.  Eayres,  55  Vt.  24. 

But  he  cannot  sustain  his  own  witness  by  proving  by  an  inde- 
pendent witness  he  made  the  same  statement  at  a  prior  time  or  as 
to  an  independent  fact  testified  to  by  such  witness.  Smithy. 
Stickney,  17  Barb.  480;  People  v.  Finnegan,  1  Park.  Crim.  Rep. 
147;  Uerrick  v.  Smith,  13  Hun,  448;  People  v.  Rugg,  21  K  Y. 
Week.  Dig.  85,  34  Hun,  032,  mem.;  affirmed  without  discussing 
that  point  in  98  K  Y.  537,  552,  3  K  Y.  Crim.  Rep.  172;  Stolp 
v.  Blair,  68  111.  541;  Childs  v.  State,  55  Ala.  25;  Snyder  v.  Com, 
85  Pa.  519;   Webb  v.  State,  29  Ohio  St.  351. 

The  Kentucky  statute  on  the  subject  is  contained  in  section  660 
of  the  Civil  Code  of  Procedure,  which  is  also  made  applicable  to 
criminal  cases.  It  provides  that  "the  party  producing  a  witness 
may  contradict  him  by  showing  that  he  has  made  statements  dif- 
ferent from  his  testimony." 

In  the  case  of  Champ  v.  Com.  2  Met.  (Ky.)  17,  it  was  said  that 
prior  to  the  adoption  of  the  code,  a  party  who  was  surprised  by 
the  testimony  of  his  own  witness,  was  allowed  to  contradict  him, 
only  by  proving  that  the  facts  stated  in  evidence  were  different. 
By  the  code,  as  already  shown,  an  additional  means  of  contradic- 
tion is  allowed — it  may  be  shown  that  the  witness  has  made  state- 
ment different  from  his  present  testimony.' 

In  Brooks  v.  Weeks,  21  Mass.  433,  Endicott,  J.,  in  commenting 
upon  the  Massachusetts  statute  says:  "Before  its  passage  the  wit- 
ness could  not  be  directly  contradicted.  The  object  of  the  statute 
is  .-imply  to  allow  the  party  to  impeach  the  credibility  of  his  wit- 
in-.-  by  showing  in  the  manner  pointed  out,  that  he  has  made 
statements  inconsistent  with  his  testimony." 

And  in  Ryersonv.  Abmgton,  102  Mass.  526,  Gray,  J.,  after 


IMPEACHMENT    OF    WITNESSES.  375 

quoting  the  statute  proceeds  as  follows  :  "So  great  a  change  in 
the  rules  of  evidence,  giving  so  extensive  a  power  to  a  party  to 
introduce  proof  in  contradiction  and  disparagement  of  a  witness 
put  upon  the  stand  by  himself,  uncontrolled  by  the  discretion  of 
the  judge  before  whom  the  trial  is  had,  must  be  kept  strictly 
within  the  bounds  of  the  statute." 

The  mere  failure  on  the  part  of  a  witness  to  testify  as  expected 
by  the  party  calling  him  will  not  enable  said  party  to  show  other- 
wise alleged  statements  made  by  the  witness  or  others  tending  to 
prove  the  case.  People  v.  Jacob*,  49  Cal.  384;  1  Roscoe,  Crim. 
Ev.  159. 

§  239.  Specific  Acts  of  Immorality  cannot  he  Shown. — 
In  Abbott's  Trial  Brief  of  Criminal  Causes,  §  473,  we  find  the 
following  :  ''A  witness  who  has  testified  to  the  good  character  of 
the  accused  may  be  asked,  on  <To>s-examination,  if  he  has  not 
heard  of  a  specified  charge  against  the  accused," — citing  Ingram 
v.  State,  67  Ala.  67,  which  was  a  murder  case  wherein  it  was  held: 
"The  shadings,  as  well  as  the  brighter  hues,  are  to  be  considered 
in  making  up  the  estimate  of  character  and  reputation,  and,  when 
a  witness  has  testified  that  he  knew  the  character  of  the  accused, 
for  peace  and  quietude,  and  that  it  was  good,  it  is  not  error  to 
allow  him  to  be  asked,  on  cross-examination,  if  he  had  not  been 
informed  that  the  defendant  had  'killed  a  man  in  the  statu  of 
Georgia,'  and  his  answer  was  admissible  in  evidence."  12<-<j-  v. 
Wood,  5  Jur.  225,  and  Dearman  v.  State,  71  Ala.  351,  are  also 
cited  by  the  author  in  support  of  this  proposition. 

In  Reg.  v.  Woo//,  supra,  the  defendant  put  his  character  in 
issue,  and  a  witness  deposed  to  having  known  him  for  some  years, 
gave  him  a  good  character,  and  stated  that  he  had  never  heard 
anything  against  him.  On  cross-examination,  the  witness  was 
asked  if  he  had  never  heard  that  defendant  was  suspected  of  hav- 
ing committed  a  robbery  in  the  neighborhood  some  years  previous. 
The  question  was  allowed,  Parke,  B.,  remarking  that:  "The 
question  is  not  whether  the  prisoner  was  guilty  of  that  robbery, 
but  whether  he  was  suspected  of  having  been  implicated  in  it. 
A  man's  character  is  made  up  of  a  uumber  of  small  circumstances, 
of  which  his  being  suspected  of  misconduet  is  one.1'  This  case  is 
cited  approvingly  in  L  Taylor  on  Evidence,  ,^  352,  and  the  author 
says:  "But  if,  with  the  view  of  raising  a  presumption  of  inno- 
cence, witnesses  to  character  are  called  lor  the  defense,  the  counsel 


376  LAW    OF    EVIDENCE    IN    CRIMINAL    CASES. 

for  the  Crown  may  then  rebut  this  presumption  by  cross-examin- 
ing the  witnesses,  cither  as  to  particular  facts,  or,  if  they  deem  it 
essential,  as  to  the  ground  of  their  belief."  Reg.  v.  Wood,  is  also 
cited  approvingly  in  Best  on  Evidence,  §  261,  where  the  doctrine 
is  also  laid  down  that,  when  a  defendant  in  a  criminal  prosecution 
puts  his  character  in  issue,  the  prosecutor  may  encounter  his  evi- 
dence either  by  cross-examination  or  by  contrary  testimony. 

§  240.  An  Examination  of  Authorities. — In  People  v. 
Orapo,  76  1ST.  Y.  288,  32  Am.  Rep.  302,  the  prisoner  was  on 
trial  for  burglary  and  larceny,  and  having  taken  the  stand  as  a 
witness  in  his  own  behalf,  was  asked  on  cross-examination  if  he 
had  been  arrested  on  a  charge  of  bigamy.  The  court  held  the- 
question  inadmissible,  and  stated  the  true  rule  to  be  that  the  dis- 
paraging questions  must  either  be  relevant  to  the  issue,  or  such  as 
clearly  go  to  impeach  the  moral  character  and  credibility  of  the  wit- 
ness. In  People  v.  Brown,  72  K  Y.  571,  23  Am.  Rep.  1S3,  the 
question  asked  the  party  testifying  in  his  own  behalf  was  how  many 
times  he  had  been  arrested,  and  it  was  held  inadmissible.  In  Ryam 
v.  People,  79  X.  Y.  591,  the  witnesses  were  asked  if  they  had  been 
indicted.  The  court,  recognizing  the  right  to  put  questions  to  a 
witness  as  to  specific  facts  which  tend  to  discredit  him  or  impeach 
his  moral  character,  held  that  the  fact  of  an  indictment  could  not 
produce  such  result,  since  it  was  merely  an  accusation  and  inno- 
cence was  presumed.  In  People  v.  Oyer  <&  Termini  r  <  7.  83  X. 
Y.  460,  the  court  said  of  this  class  of  questions  that  its  control  over 
them  was  not  absolute,  and  that,  as  a  general  rule,  the  range  and 
extent  of  such  an  examination  is  within  the  discretion  of  the  trial 
judge,  subject,  however,  to  the  limitation  that  it  must  relate  to 
matters  pertinent  to  the  issue,  or  to  specific  facts  which  tend  to 
discredit  the  witness  or  impeach  his  moral  character;  and  to  the 
same  effect  was  People  v.  Casey,  72  JSr.  Y.  393.  This  decision 
nearly  restates  the  position  taken  by  the  old  court  of  errors  in 
1823:  ''Evidence  that  a  female  is  by  reputation  unchaste,  is  not 
competent  by  way  of  impeachment.  Indeed  a  witness  cannot  be 
impeached  by  proof  of  any  specific  immorality.  It  must  rest  on 
general  moral  character,  or  character  for  truth.  Bakeman  v. 
Rose,  IS  Wend.  146,  and  cases  cited."  Nor  can  "character"  be 
proved  by  reputation. 

In  the  case  of  Robinson  v.  State,  84  Ind.  452,  the  defendant. 
had  testified  in  his  own  behalf,  and  the  state,  for  the  purpose  of 


IMPEACHMENT    OF    WITNESSES.  oil 

impeaching  the  defendant  as  a  witness,  called  a  witness  and  proved 
by  the  witness  that  he  was  acquainted  with  the  defendant's  gen- 
eral moral  character,  and  that  it  was  bad.  The  defendant's 
counsel  cross-examined  the  witness,  asking  the  question :  "The 
defendant  has  the  reputation  of  being  a  drinking,  swearing  man, 
has  he  not  ?"  The  witness  answered  :  "He  has."  On  re-exami- 
nation, the  state  asked  the  witness,  "What  is  the  defendant's  rep- 
utation for  honesty  V  The  defendant  objected,  and  the  court 
overruled  the  objection,  and  the  witness  answered  that  it  was 
bad.  On  appeal  the  court  held  that  the  evidence  was  improper, 
and  that  the  court  erred  in  admitting  it.  Drew  v.  State,  124 
Ind.  9. 

In  Tennessee  it  has  been  long  and  well  settled  that  in  impeach- 
ing the  credibility  of  a  witness  the  inquiry  is  not,  as  in  some  of 
the  states,  restricted  to  the  general  reputation  for  veracity,  but  it 
involves  his  whole  moral  character.  It  has  been  regarded  as 
essential  to  the  ends  of  justice  that  both  the  court  and  jury 
should  have  full  opportunity  of  knowing  the  entire  moral  charac- 
ter of  the  witness  where  credit  is  sought  to  be  impeached.  "In 
view  of  all  of  which,"  as  was  said  by  Judge  Mc Kinney  in  Gilliam 
v.  State,  1  Head,  38,  "It  may  be  safely  left  to  the  jury  to  deter- 
mine what  degree  of  credit  the  witness  is  entitled  to  for  truth, 
notwithstanding  his  other  vices  and  immoralities  of  character,  as 
his  claim  to  veracity  is  the  primary  and  important  consideration." 

According  to  the  practice  in  that  state,  the  proper  inquiry  is 
whether  the  witness  knows  the  general  character  of  the  person 
whose  credibility  is  in  question,  and  whether,  from  such  knowl- 
edge, the  witness  would  believe  him  on  oath.  Ford  v.  Ford,  7 
Humph.  92;  Merriman  v.  State,  3  Lea,  394;  Peck  v.  State,  86 
Tenn.  259. 

In  a  recent  Arkansas  case,  the  state  having  proved  certain  dam- 
aging facts,  by  the  principle  witness,  the  appellant  seeking  to 
vitiate  this  evidence,  introduced  an  impeaching  witness  who  tes- 
tified that  he  knew  the  witness  for  the  state,  and  had  lived  near 
her  for  seven  years,  and  knew  her  general  reputation  for  truth 
and  morality  in  the  neighborhood  in  which  she  lived,  and  that  it 
was  not  good;  he  considered  it  bad.  Appellant  then  asked  him, 
if,  taking  such  reputation  as  a  basis,  would  he  believe  her  on  oath  ? 
The  state  objected  to  hi-  answering  the  question;  the  court  sus- 
tained the  objection;  and  appellant  excepted.     According  to  pro- 


37b  LAW    OF    EVIDENCE    IN    CRIMINAL    CASES. 

vious  decisions  and  the  practice  which  lias  long  prevailed,  the 
question  was  proper  and  should  have  been  answered.  Pleasants 
v.  State,  15  Ark.  651;  Mansfield,  Dig.  §  2902;  Snow  v.  Grace,  29 
Ark.  L36. 

§  241.  When  Declarations  Made  out  of  Court  are  Ad- 
missible.—  Proof  of  declarations  made  by  a  witness  out  of  court, 
in  corroboration  of  testimony  given  by  him  on  the  trial  of  the 
cause,  is  as  a  general,  and  almost  universal  rule,  inadmissible. 

It  seems,  however,  that  to  this  rule  there  are  exceptions,  and 
that  under  special  circumstances  such  proof  will  be  received;  as 
where  the  witness  is  charged  with  giving  his  testimony  under  the 
influence  of  some  motive  prompting  him  to  make  a  false  or  colored 
statement,  ir  may  be  shown  that  he  made  similar  declarations  at 
a  time  when  the  imputed  motive  did  not  exist.  So  in  contradic- 
tion of  evidence  tending  to  show  that  the  account  of  the  transac- 
tion given  by  the  witness,  is  a  fabrication  of  late  date,  it  may  be 
shown  that  the  same  account  was  given  by  him  before  its  ultimate 
■effect  and  operation  arising  from  a  change  of  circumstances  could 
have  been  foreseen.     Robb  v.  Tlachley,  23  Wend.  50. 

§  242.  Interpreter  may  be  Impeached. — Inherent  power  is 
vested  in  the  courts  to  resort  to  the  aid  of  a  skilled  interpreter  or 
professional  linguist  in  all  cases  where  it  is  necessary  to  translate 
the  evidence  to  the  court,  counsel,  jury,  or  parties  interested. 
Skaggs  v.  State,  108  Ind.  53;  Thomason  v.  Territory,  4  N.  M. 
150;  People  v.  Ramirez,  56  Cal.  5:;:!.  38  Am.  Rep.  73. 

The  accuracy  of  the  translation  may  be  controverted  and  in 
rebuttal  the  interpreter  may  be  impeached.  Indeed  the  value  of 
his  entire  rendering  of  the  evidence  is  for  the  exclusive  determi- 
nation of  the  jury.  Skaggs  v.  State,  sv/pra;  Sohnier  v.  People, 
23  Ilk  17. 


CHAPTER  XXXIII. 

DEPOSITIONS  IN  CRIMINAL  CASES. 

§  243.   Only  Admitted  by  Force  of  Statute. 
24-4.  Exposition  of  this  Subject  by  Neio  York  Court  of  Appeals. 

a.  Extreme  Importance  of  the  Right. 

b.  Views  of  Distinguished  Judges. 

24~>.   New  York-  Criminal  Code  Provisions  Stated. 

24*;.   Statement  of  the  English  and  California  Hide. 

247.  Examination  of  Witnesses  Conditionally  for  the  Accused. 

£  243.  Only  Admitted  by  Force  of  Statute.— In  criminal 
cases  in  the  United  States,  it  has  been  held  that  depositions  can- 
not be  used  without  the  consent  of  the  defendant,  and  the  Con- 
stitution of  the  United  States  declares  that  the  accused  shall  enjoy 
the  right  to  be  confronted  with  the  witnesses  against  him,  and 
this  provision  has  been  incorporated  in  the  constitutions  of  most 
of  the  states,  or  recognized  as  statutory  law.  In  some  states  pro- 
vision is  made  for  the  taking  of  depositions  by  the  accused. 
Greenleaf's  opinion  is.  that  no  deposition  is  admissible  by  force  of 
English  or  American  statutes,  unless  taken  wholly  in  the  prison- 
er"- presence,  in  order  to  afford  him  the  opportunity  to  eross- 
examine  the  witnesses,  under  the  constitutional  provisions  before 
mentioned;  nor  even  then,  except  as  secondary  evidence,  the 
deponent  being  dead,  or  out  of  the  jurisdiction,  or  to  impeach  his 
testimony  given  orally  at  the  trial.  And  it  is  stated,  as  a  general 
rule,  that  depositions  are  in  no  case  admissible  in  criminal  pro- 
ceedings, unless  by  force  of  express  statutes,  or  possibly  by  con- 
sent of  the  prisoner  in  open  court.  Even  in  the  case  of  informa- 
tions before  a  justice  of  the  peace,  numerous  authorities  hold  that 
they  should,  be  taken  in  the  presence  of  the  prisoner.  Weeks, 
Depositions,  §  557,  citing  3  Greenl.  Ev.  §  11:  McLane  v.  Stated 
(ia.  335;  Rex  v.  Thatcher,  T.  Jones,  •">•'!:  :!  T.  R.  722;  Sills  v. 
Brown,  9  Car.  &  P.  '''"1:  Hex  v.  Grady,  7  Car.  A'  P.  650;  Rex 
x.  Coveney,  7  Car.  &  P.  667;  Bostick  v.  State,  3  Humph.  344; 
Stat,  v.  Bowen,  4  McCord,  L.  -i:>A:  Stat,  v.  Valentine,  29  X.  C. 
225;   Dominges  v.  State,  7  Smedes  A    M.  17."»:   Rex  v.   Paine,  i> 

379 


380  LAW    OF    EVIDENCE    IN    CRIMINAL    CASES. 

Mod.  163;  Bex  v.  FrisweU,  3  T.  R.  722;  Bex  v.  Errington,  2  Lew. 
C.  C.  142;  Rex  v.  Woodcock,  1  East,  P.  C.  356;  Bex  v.  Smith,  2 
Stork.  208.  But  see  Beg.  v.  Walsh,  5  Cox,  C.  C.  115;  U.  S. 
Const.  6th  Amend.;  Ohio  Const,  art.  1,  §  10;  Conn.  Const,  art.  lr 

§9. 

There  is  no  constitutional  inhibition  against  the  state  allowing 
defendants  in  criminal  cases  to  take  and  use  the  depositions  of 
witnesses  in  their  behalf.  The  constitution  entitles  the  accused, 
in  criminal  and  penal  cases,  to  meet  his  accusers  face  to  face,  and 
to  be  confronted  with  the  witnesses  against  him.  The  state,  there- 
fore, cannot  authorize  the  taking  and  using  of  depositions  of  wit- 
nesses against  him,  but  he  may  use  the  depositions  of  witnesses  in 
his  behalf  under  any  state  of  case  that  the  legislature  may  allow. 
Kaelin  v.  Com.  84  Ivy.  354. 

In  criminal  prosecutions  in  this  country  depositions  are  rarely 
employed;  but  where  the  accused  has  had  an  opportunity  to  cross- 
examine  the  witness  whose  deposition  it  is  thought  to  introduce,, 
he  has  no  reason  to  complain  that  the  constitutional  guaranty  has 
been  violated.  Such  instance  arises  where,  in  a  former  trial,  the 
accused  was  confronted  with  the  witness,  or  on  preliminary  hear- 
ings before  a  coroner  or  committing  magistrate.  And  it  seems 
that  notes  taken  on  such  occasion,  are  admissible  in  evidence 
where  the  witness  has  since  died  or  is  beyond  the  jurisdiction  of 
the  court.  See  Brown  v.  Com.  73  Pa."  321,  13  Am.  Rep.  740;. 
State  v.  Chambers,  43  La.  Ann.  1108. 

The  right  to  a  deposition  in  criminal  cases  is  exclusively  that  of 
the  accused,  and  by  order  of  the  court  they  may  be  taken  in  the 
manner  prescribed  for  taking  depositions  in  civil  cases  after  due- 
notice  to  the  district  attorney.     Tennessee  Code,  §  6223. 

If  the  witness  be  a  prisoner,  an  order  for  his  examination  in  the 
prison  upon  deposition,  or  for  his  temporary  removal  and  produc- 
tion, before  a  court  or  officer,  for  the  purpose  of  being  orally 
examined,  may  be  made  as  follows: 

1.  By  the  court  or  judge  thereof  in  which  the  action,  suit,  or 
proceeding  is  pending,  unless  it  be  a  court  of  a  justice  of  the 
peace; 

2.  By  any  judge  of  a  court  of  record,  when  the  action,  suit,  or 
proceeding  is  pending  in  a  justice's  court,  or  when  the  witness's- 
deposition,  affidavit,  or  oral  examination  is  required  before  a  judge 
or  other  person  out  of  court; 


DEPOSITIONS    IN    CRIMINAL    CASES.  381 

3.  Such  order  shall  only  be  made  upon  the  affidavit  of  the  party 
■desiring  the  order,  or  some  one  on  his  behalf,  showing  the  nature 
of  the  action,  suit,  or  proceeding,  the  testimony  expected  from 
the  witness,  and  its  materiality; 

4.  If  the  witness  be  imprisoned  in  the  county  where  the  action, 
suit,  or  proceeding  is  pending,  and  for  a  cause  other  than  a  sen- 
tence for  felony,  his  production  may  be  required;  in  all  other 
•cases,  his  examination  shall  be  taken  by  deposition.  Hill,  Ann. 
Law  of  Oregon,  §  801. 

Depositions  can  only  be  admitted  in  criminal  cases  under  local 
.statute,  and  in  submission  to  the  constitutional  guarantees  as  to 
the  personal  examination  of  witnesses.  Whart.  Crim.  Ev.  §  306; 
People  v.  Murphy,  1  X.  Y.  Crim.  Rep.  102;  People  v.  Gannon. 
61  Cal.  176. 

Under  statutes  or  by  consent  of  the  prosecuting  officer,  evidence 
may  be  taken  for  the  defendant  by  ordinary  deposition.  Bishop, 
Crim.  Proc.  (3d  ed.)  §  1206.     See  People  v.  Bestell,  3  Hill  289. 

But  in  order  to  render  such  a  deposition  competent  evidence, 
the  examination  must  in  general  be  in  the  presence  of  the  accused, 
so  that  he  may  know  the  precise  words  which  the  witness  uses, 
and  observe  throughout  his  manner  of  testifying.  If  desired  by 
the  accused,  he  has  a  right  that  his  counsel  shall  be  present  during 
the  examination.  A  reasonable  time  after  the  arrest  should  be 
allowed  for  the  purpose  of  employing  counsel,  where  the  accused 
requests  it,  and  if  the  magistrate  refuse  this,  the  deposition  will 
not  be  evidence.  The  answers  of  the  witness  should  be  on  oath, 
.and  hence,  instead  of  taking  the  examination  first  and  then  swear- 
ing him  to  the  truth  of  the  statement,  he  should  be  sworn  before 
the  examination  commences.  The  deposition  should  be  taken  as 
nearly  as  possible  in  the  exact  words  of  the  witness.  People  v. 
Mestell,  supra. 

It  is  essential  that  the  accused  should  have  a  full  and  fair  oppor- 
tunity of  cross-examining;  and  if  this  be  denied  him,  the  deposi- 
tion will  not  be  competent  evidence.  The  deposition  will  be 
invalid,  moreover,  if  the  oath  administered  to  the  witness  do  not 
extend  to  his  answers  to  questions  put;  e.  (j.,  where  it  is  merely  to 
the  truth  of  a  statement  previously  drawn  up.  People  v.  Ji'estell, 
sup)ra. 

According  to  the  provisions  of  the  California  renal  ('ode,  the 
right  to  take  the  deposition  of  a  witness  on  behalf  of  the  people, 


382  LAW    OF    EVIDENCE    IN    CRIMINAL    CASES. 

in  a  criminal  case,  arises  out  of  the  fact  that  the  witness  is  unable 
to  procure  sureties  for  his  appearance  on  the  trial;  and  that  fact 
must  be  satisfactorily  established  by  the  examination  on  oath  of 
the  witness  himself,  or  of  some  other  person.  When  the  fact  has 
been  judicially  ascertained,  the  right  to  take  the  deposition  of  the 
witness  may  he  put  in  motion.  But  the  examination  of  the  wit- 
ness must  be  had  in  the  presence  of  the  defendant,  or  after  due 
notice  to  him,  and  "must  be  conducted  in  the  same  manner  as  the 
examination  of  a  witness  beforea  committing  magistrate  is  required 
by  the  penal  code  to  be  conducted."  Taking  the  testimony  of  a 
witness  on  behalf  of  the  people  in  a  criminal  case  by  deposition,, 
is  an  exception  to  the  rule,  which  entitles  the  defendant  in  a  crim- 
inal action  to  be  confronted  with  the  witnesses  against  him  in  the 
presence  of  the  court,  and  every  substantial  requirement  of  the 
law  which  authorizes  it  must  be  observed.  Any  real  departure 
from  the  course  prescribed  for  the  taking  of  the  deposition  ren- 
ders the  deposition  itself  objectionable.  Peoples.  Mitchell,  Q4: 
Cal.  85;  People  v.  Morine,  51  Cal.  575;  Williams  v.  Chadbourne, 
6  Cal.  559;  /'■  opli  v.  <  'hung  Ah  Chue,  57  Cal.  567;  Am.  &  Eng. 
Enc.  Law,  title  Depositions,  subd.  15,  note. 

"In  all  criminal  prosecutions  the  accused  .  .  .  has  a  right 
to  be  confronted  by  the  witness  against  him."  The  accused  was 
confronted  by  the  witness  on  the  former  trial,  and  he  had  an  op- 
portunity of  making  a  cross-examination,  that  satisfies  the  require- 
ments of  the  statutes.  The  right  secured  to  the  accused,  it  is  to 
be  observed,  is.  "to  be  confronted  with  the  witnesses  against  him." 
This  language  does  not  require  that  the  accused  shall,  in  all  cases, 
be  confronted  with  the  witnesses  against  him  upon  a  pending 
trial  of  the  indictment.  The  court  have  held  that  the  statute  is 
satisfied,  in  cases  of  necessity,  if  the  accused  has  been  once  con- 
fronted by  the  witness  against  him  in  any  stage  of  the  proceed- 
ings upon  the  same  accusation  and  has  had  an  opportunity  of  a 
cross-examination  by  himself  or  by  counsel  in  his  behalf.  Peoplt 
\.  N<  wman,  5  Hill,  295.  See  Crary  v.  Sprague,  12  Wend.  41, 
27  Am.  Dec.  110;  Brown  v.  Com.  73  Pa.  321,  13  Am.  Rep.  740. 

This  provision  has  no  application  to  criminal  trials  in  the  state 
courts  for  a  violation  of  state  laws.  This  right  secured  to  the 
accused  is  limited  in  its  application  to  citizens  of  the  United  States 
on  trial  in  the  Federal  courts  charged  with  a  violation  of  the 
Constitution  of  the   United  States  or  of  the  laws  of  Conoress.. 


DEPOSITIONS    IN    CRIMINAL    CASK-.  3S3 

This  clause  of  the  Constitution  lias  been  frequently  and  deliber- 
ately interpreted  by  the  Federal  courts,  and  the  decisions  are  so 
full,  emphatic  and  conclusive  that  it  is  only  necessary  to  cite  the 
cases  where  the  rule  as  stated  may  be  found.  Barron  v.  Balti- 
more, 32  (/.  S.  7  Pet.  247,  8  L.  ed.  674;  Withers  v.  Buckley,  61 
U.  S.  20  How.  84.  15  L.  ed.  816;  United  States  v.  Cruikshank, 
92  T.  S.  :,42,  23  L.  ed.  588;  Walker  v.  Sauvinet,  92  T.  S.  90,  23 
L.  ed.  678;  Peoph  v.  P<  nhollow,  5  X.  Y.  Crim.  Rep.  41.  People 
v.  Williams,  35  nun.  516,  3  X.  Y.  Crim.  Rep.  03. 

§  244.  Exposition  of  this  Subject  by  New  York  Court  of 
Appeals. — A  very  recent  decision  by  the  New  York  court  of 
appeals  has  contributed  to  place  this  vexed  question  of  depositions 
taken  in  criminal  cases  beyond  the  reach  of  further  controversy. 
The  functions  this  species  of  evidence  discharges  in  the  trial  of 
civil  causes,  is  well  recognized  and  perfectly  understood,  but,  the 
fluctuation  of  the  authorities  upon  the  admissibility  of  depositions, 
in  criminal  causes,  has  led  to  discordant  rulings,  and  considerable 
misapprehension.  The  importance  of  the  topic,  induces  the  fol- 
lowing somewhat  extended  extract  from  the  opinion  from  Mr. 
Justia   Karl  in  People  v.  Fish,  125  X.  Y.  13(3: 

"It  is  clearly  settled  by  numerous  adjudications  that  the  right 
of  the  defendant  to  be  confronted  with  the  witnesses  within  the 
meaning  of  the  Federal  Constitution  and  the  Bill  of  Rights  was 
not  denied  to  him.  The  evidence  of  the  witness  was  taken  in  his 
presence  where  he  had  the  opportunity  to  cross-examine  him.  and 
where  he  did  in  fact  cross-examine  him,  and  thus  he  had  all  the 
protection  that  the  Bill  of  Rights  and  the  Constitution  were  in- 
tended to  secure  him.  This  constitutional  provision  was  not 
intended  to  secure  to  the  accused  person  the  right  to  be  confronted 
with  the  witnesses  against  him  upon  his  final  trial,  but  to  protect 
him  against  ex  parte  affidavits  and  depositions  taken  in  his  ab- 
sence, as  was  frequently  the  practice  in  England  at  an  early  day. 
It  was  never  regarded  as  an  invasion  of  the  fundamental  rights 
of  an  accused  person  to  read  depositions  upon  his  trial,  if  at  some 
stage  of  his  case  he  could  be  confronted  with  and  cross-examine 
the  witnesses  to  be  used  against  him.  in  Cooley's  Constitutional 
Limitations  (5th  ed.)  389,  the  learned  author,  speaking  of  this 
constitutional  provision,  .-ays:  '  If  the  witness  was  sworn  before 
the  examining  magistrate,  or  before  a  coroner,  and  the  accused 
had  an  opportunity  then  to  cross-examine  him,  or  if  there  was  a 


384  LAW    OF    EVIDENCE    IN    CRIMINAL    CASES. 

former  trial  on  which  he  was  sworn,  it  seems  allowable  to.  make 
use  of  his  deposition,  or  of  the  minutes  of  his  examination,  if  the 
witness  has  since  deceased,  or  is  insane,  or  sick  and  unable  to  tes- 
tify, or  has  been  summoned,  but  appears  to  have  been  kept  away 
by  the  opposite  party.'  And  for  this  he  cites  numerous  authori- 
ties." 

The  admission  of  this  grade  of  evidence  does  not  offend  against 
the  well  known  amendment  of  the  Constitution  of  the  United 
States,  which  declares  that  in  criminal  prosecutions,  the  accused, 
shall  be  confronted  with  the  witnesses  against  him,  even  the  lit- 
eral construction  of  this  article  does  not  require  that  the  accused 
should  be  so  confronted  upon  the  trial  of  the  indictment  itself, 
and  when  the  effect  of  the  same  language  has  been  considered  by 
the  courts,  it  has  been  held  to  be  a  compliance  with  what  has  in 
this  manner  been  required,  that  at  some  stage  in  the  progress  of 
the  criminal  proceeding  the  accused  should  be  confronted  with 
the  witnesses  and  afforded  the  opportunity  for  their  cross-exami- 
nation, and  when  he  has  been  so  confronted  and  that  opportunity 
has  been  afforded  to  him,  that  the  evidence  may  afterwards,  under 
certain  circumstances  certainly,  be  read  upon  the  trial  of  an 
indictment  subsequently  presented  against  him.  The  construction 
upon  this  subject  has  been  generally  stated  to  be,  "if  the  witness 
was  sworn  before  the  examining  magistrate,  or  before  a  coroner, 
and  the  accused  had  an  opportunity  then  to  cross-examine  him,  or 
if  there  was  a  forme]'  trial  on  which  he  was  sworn,  it  seems  allow- 
able to  make  use  of  his  deposition,  or  of  the  minutes  of  his  exam- 
ination, if  the  witness  has  since  deceased,  or  is  insane,  or  sick  and 
unable  to  testify."  Cooley,  Const.  Lim.  (3d  ed.)  318.  And  that 
the  evidence  of  a  deceased  witness,  in  this  manner  taken  either 
upon  a  preceding  trial  or  before  the  committing  magistrate,  may 
be  read  upon  the  trial,  has  been  sanctioned  by  the  following 
authorities:  Crary  v.  Sjorague,  12  Wend.  41,  27  Am.  Dec.  110; 
Peoj>l>'  v.  Newman,  5  Hill,  295;  State  v.  Valentine,  29  N.  C. 
225;  Summons  v.  State,  5  Ohio  St.  325;  Brown  v.  Com.  73  Pa. 
321,  13  Am.  Rep.  740;  Com.  v.  Richards,  18  Pick.  437. 

It  is  manifest  from  the  authorities  permitting  the  deposition  or 
evidence  of  a  deceased  witness  to  be  read  upon  the  trial  of  the 
accused,  that  it  has  not  been  deemed  essential  that  he  should  be 
confronted  by  the  witness  against  him  upon  the  trial  itself,  but  if 
the  evidence  be  taken  in  the  course  of  the  proceeding  in  his 


DEPOSITIONS    IN    CRIMINAL    CASES.  385 

presence,  and  with  the  right  or  privilege  of  cross-examination 
secured  to  him,  that  will  be  sufficient  to  allow  the  deposition  to 
he  read  in  case  of  the  decease  of  the  witness  making  it,  between 
the  time  when  it  may  be  taken  and  the  time  of  the  trial.  And  if 
this  article  of  the  Constitution  should  be  held  to  be  applicable  to 
the  case,  it  would  not,  therefore,  exclude  the  deposition  received 
in  evidence  on  the  trial  of  the  defendant. 

a.  Extreme  Importance  of  the  Right.— This  subject  of 
depositions  received  in  criminal  cases,  is  freighted  with  grave 
•constitutional  rights.  The  organic  law  has  guaranteed  a  well 
recognized  prerogative,  the  manifest  justice  of  which  it  was  the 
just  pride  of  the  civil  law  to  have  established.  That  law  pro- 
vides that  no  person  shall  be  convicted  of  a  heinous  criminal 
offense — pilloried  at  the  bar  of  opinion,  deprived  of  his  fair  name 
and  reputation,  despoiled  of  his  property,  outraged  in  every  sensi- 
bility by  any  law,  which  admits  in  evidence  the  irresponsible  ex 
-parte  allegation  of  his  most  virulent  traducers,  under  the  guise 
of  a  deposition.  The  metropolitan  bar  has  produced  no  abler 
judge  than  James  E.  Brady  and  his  legal  fame  is  indissolubly 
linked  with  a  superb  protest  in  a  way  of  a  dissenting  opinion 
against  this  whole  enormity  of  criminal  deposition,  which  we 
reproduce  in  connection  with  this  immediate  topic.  That  it  is 
an  incisive  comment  upon  the  abuses  that  infest  this  rule  all  will 
admit,  and  that  it  is  a  logical  statement  of  an  elementary  propo- 
sition in  the  rules  of  governing  natural  right  all  will  admit. 

b.  Views  of  Mr.  Justice  Brady. — "Under  the  law  in  a  crim- 
inal action  the  defendant  is  entitled:  1.  To  a  speedy  and  public 
trial.  2.  To  be  allowed  counsel  as  in  civil  actions,  or  he  may  appear 
and  defend  in  person  and  with  counsel,  and  3.  To  produce  wit- 
nesses in  his  behalf,  and  to  be  confronted  with  the  witnesses  against 
him  in  the  presence  of  the  court,  except  that  where  the  charge 
has  been  preliminarily  examined  before  a  magistrate,  and  the  tes- 
timony reduced  by  him  to  the  form  of  a  deposition  in  the  presence 
of  the  defendant,  who  has,  either  in  person  or  by  counsel,  cross- 
examined,  or  had  an  opportunity  to  cross-examine  the  witness, 

.  .  the  deposition  of  the  witness  may  be  read  upon  its  being 
satisfactorily  shown  to  the  court  that  he  is  dead  or  insane,  or  can- 
not, with  due  diligence,  be  found  in  the  state. 

"The  preliminary  examination  is  in  no  sense  a  trial  by  a  jury  and 
25 


3S6  LAW    OF    EVIDENCE    IN    CRIMINAL    CASES. 

is  not  designed  for  that  purpose.  It  is  intended  to  protect  the- 
accused  from  further  prosecution  if  the  magistrate  is  satisfied  that 
none  should  be  had,  thus  enabling  the  accused  to  have  a  summary 
hearing  before  the  magistrate  and  protecting  him  from  a  series  of 
burdens  which,  if  innocent,  he  would  otherwise  unnecessarily  have- 
to  bear.  It  is  not  exalted  in  dignity  because  the  right  to  cross- 
examine  is  given  in  the  statute.  This  is  not  new  in  such  exami- 
nations. The  right  to  cross-examine  has  always  existed.  The  fatal 
objection  to  the  use  of  the  deposition  is  that  the  accused  is  not 
confronted  at  the  trial  before  the  jury  impaneled  to  try  him 
with  the  witnesses,,  as  required  by  the  constitution  and  bill  of 
rights.  He  is  confronted  with  him  before  the  magistrate,  who  is 
really  only  setting  the  criminal  machinery  in  motion,  having  no 
power  to  pronounce  a  judgment  of  which  punishment  may  be 
predicated.  This  is  not  a  compliance  with  the  fundamental  law 
and  should  not  be  tolerated.  There  are  many  reasons  why  it. 
should  be  regarded  as  a  dangerous  procedure.  There  are  many 
cases  in  which  the  accused,  upon  such  notice  as  his  arrest  gives, 
would,  even  if  innocent,  be  entirely  unprepared  to  ask  any  ques- 
tions arising  from  many  causes  which  might  exist  and  which  the 
imagination  can  readily  supply. 

"  The  charge  is  made  by  a  stranger,  and  having  made  it  departs 
and  cannot  be  found.  He  may  be  actuated  by  malice  or  mistaken 
as  to  the  identity  of  the  transgressor  if  a  crime  has  been  commit- 
ted; but  his  testimony  is  to  be  received  if  he  cannot  be  found,, 
and  accepted  as  true  without  the  test  of  a  single  element  which  dis- 
tinguishes a  trial  from  a  mere  preliminary  examination,  and  this 
because  the  accused  has  been  advised  that  he  may  have  the  privi- 
lege of  cross-examination.  What  privilege?  The  cross-examina- 
tion of  a  witness  is  an  art  which  all  lawyers  do  not  possess,  while 
with  some  it  is  a  power  which  assists  materially  in  the  revelations 
of  the  truth  and  prevents  the  commission  of  great  wrongs.  It  is 
an  ally  of  justice  in  its  administration,  and  as  important  if  not 
more  important  than  any  other  element  of  jurisprudence.  This 
was  well  understood  by  the  framers  of  the  constitution,  and  was, 
no  doubt,  one  of  the  considerations  which  induced  the  protection 
guaranteed  by  the  right  to  be  confronted  wTith  the  witness.  It  is 
true  that  in  some  states,  and  it  may  be  said  now  in  this  state,  the 
eviilence  of  a  deceased  witness  on  a  former  trial  may  be  read  on 
proof  of  his  death.     See  State  v.  Fitzgerald,  63  Iowa,  268;  Cora.. 


DEPOSITIONS    IN    CRIMINAL    CASES.  387 

v.  Richards,  18  Pick.  434;  Sullivan  v.  State,  6  Tex.  App.  319; 
State  v.  Hooker,  17  Vt.  658;  Kean  v.  Com.  10  Bush,  190, 19  Am. 
Kep.  63;  Walston  v.  Com.  16  B.  Mon.  15;  Marler  v.  State,  67 
Ala.  55,  42  Am.  Rep.  95;  Roberts  v.  State,  68  Ala.  515;  Brown 
v.  Com.  73  Pa.  321,  13  Am.  Kep.  740.  But  there  a  trial  has 
been  had  and  all  the  rights  of  such  a  proceeding  secured.  The 
accused  has  been  confronted  with  the  witnesses  and  has  had  the 
opportunity  to  sift  their  evidence  and  assail  them  if  he  could 
do  so. 

"  True,  also,  it  has  been  held  in  other  states  (see  Com.  v.  Rich- 
ards, and  State  v.  Fitzgerald,  supra),  that  evidence  was  received 
to  show  what  a  deceased  witness  stated  on  a  preliminary  examin- 
ation, and  although  a  constitutional  barrier  existed  similar  to  ours. 
The  extent  to  which  the  authorities  in  this  state  have  proceeded 
has  only  permitted  the  evidence  of  a  deceased  witness  upon  a 
former  trial  of  the  same  indictment  to  be  used.  See  People  v. 
Newman,  5  Hill,  295;  Crary  v.  Sprague,  12  Wend.  41,  27  Am. 
Dec.  110.  And  in  the  first  of  these  cases  it  was  expressly  held 
that  the  public  prosecutor  could  not  use  the  testimony  given  by  a 
witness  on  a  former  trial,  though  he  be  absent  from  the  state. 
And  it  was  suggested  in  that  case  that  the  rule  which  allowed  the 
evidence  of  a  deceased  witness  to  be  admitted  in  civil  cases  should 
not  be  applied  to  criminal  proceedings,  and  the  judgment  in  the 
ease  of  Finn  v.  Com.  5  Rand.  (Va.)  701,  was  approved,  in  which 
Brockenbrough,  J.,  said  that  even  the  death  of  the  witness  could 
not  in  a  criminal  case  be  allowed  as  a  reason  for  receiving  his 
former  testimony. 

"Justice  Kelson  said,  in  Crary  v.  Sprague,  that  the  testimony  of 
a  witness  could  not  be  received  unless  he  were  dead  and  his  death 
were  affirmatively  shown,  and  proceeded  further  to  say:  '  Even 
diligent  inquiry  without  being  able  to  find  the  witness  is  not  suffi- 
cient, though  it  is  obvious  there  can  scarcely  be  a  shade  of  differ- 
ence between  the  two  cases  (death  and  absence)  either  in  principle 
or  hardship.' 

"  It  is  true,  as  remarked  by  Justice  Kelson,  that  there  is  scarcely 
a  shade  of  difference  between  the  principle  upon  which  evidence 
of  a  deceased  witness  is  admitted,  and  that  of  an  absent  witness 
whose  presence  cannot  be  secured  by  diligent  search.  But  it  is 
quite  apparent  that  in  allowing  the  evidence  of  a  deceased  wit- 
ness upon  a  former  trial,  where  the  right  of    examination   was 


388  LAW    OF    EVIDENCE    IN    CRIMINAL    CASES. 

secured  and  in  the  presence  of  the  jury,  the  inroad  upon  the 
constitutional  protection  was  carried  as  far  as  it  should  be.  It 
ought  not  to  be  extended  to  the  evidence  given  upon  a  prelimi- 
nary examination  of  a  witness  not  dead,  but  not  able  to  be  found. 
People  v.  ]\Tewman,  supra,  sustains  this  proposition  and  it  should 
be  preserved.  There  is  a  wide  distinction  between  a  preliminary 
proceeding  and  a  trial,  and  the  cases  to  which  reference  has  been 
made  form  no  precedent  for  the  section  under  consideration.  Its 
passage  is  regarded  as  having  been  ill-advised  and  improvident, 
and  its  repudiation  as  a  part  of  the  law  of  the  state  should  be 
declared  at  once." 

Judge  Cooley,  whose  pre-eminence  as  a  jurist  and  logician  has 
long  since  passed  beyond  the  domain  of  cavil  or  dispute,  sustains 
the  position  of  Judge  Brady,  in  language  that  admits  of  no  mis- 
conception from  the  sixth  edition  of  his  incomparable  work  on 
Constitutional  Limitations,  at  page  387  I  excerpt  the  following: 

"The  testimony  for  the  people  in  criminal  cases  can  only,  as  a 
general  rule,  be  given  by  witnesses  who  are  present  in  court. 
The  defendant  is  entitled  to  be  confronted  with  the  witnesses 
against  him;  and  if  any  of  them  be  absent  from  the  common- 
wealth, so  that  their  attendance  cannot  be  compelled,  or  if  they 
be  dead,  or  have  become  incapacitated  to  give  evidence,  there  is 
no  mode  by  which  their  statements  against  the  prisoner  can  be 
used  for  his  conviction.  The  exceptions  to  this  rule  are  of  cases 
which  are  excluded  from  its  reasons  by  their  peculiar  circumstances, 
but  they  are  far  from  numerous.  If  the  witness  was  sworn  before 
the  examining  magistrate,  or  before  a  coroner,  and  the  accused 
had  an  opportunity  then  to  cross-examine  him,  or  if  there  were  a 
former  trial  on  which  he  was  sworn,  it  seems  allowable  to  make 
use  of  his  deposition,  or  of  the  minutes  of  his  examination,  if  the 
witness  has  since  deceased,  oris  insane,  or  sick  and  unable  to  testify, 
or  has  been  summoned  but  appears  to  have  been  kept  away  by  the 
opposite  party.  So,  also,  if  a  person  is  on  trial  for  homicide,  the  dec- 
larations of  the  party  whom  he  is  charged  with  having  killed,  if 
made  under  the  solemnity  of  a  conviction  that  he  was  at  the  point 
of  death,  and  relating  to  matters  of  fact  concerning  the  homicide, 
which  passed  under  his  own  observation,  may  be  given  in  evidence 
against  the  accused;  the  condition  of  the  party  who  made  them 
being  such  that  every  motive  to  falsehood  must  be  supposed  to 
have  been  silenced,  and  the  mind  to  be  impelled  by  the  most  pow- 


DEPOSITIONS    IN    CRIMINAL    CASES.  389 

erful  considerations  to  tell  the  truth.  ]STot  that  such  evidence  is  of 
very  conclusive  character;  it  is  not  always  easy  for  the  hearer  to 
determine  how  much  of  the  declaration  related  to  what  was  seen 
and  positively  known,  and  how  much  was  surmise  and  suspicion 
only;  but  it  is  admissible  from  the  necessity  of  the  case,  and  the 
jury  must  judge  of  the  weight  to  be  attached  to  it." 

§  245.  New  York  Criminal  Code  Provisions  Stated. — While 
disclaiming  any  attempt  to  emphasize  the  provisions  of  the  New 
York  statutes,  or  to  extend  to  them  any  extra-territorial  effect  I  can- 
not ignore  the  fact  that  they  have  been  found  wonderfully  effective 
in  the  administration  of  criminal  justice,  and  have  satisfactorily 
met  the  test  imposed  by  many  years  of  practical  working.  They 
are  reproduced  in  this  connection  both  as  affording  a  practical 
exposition  of  the  subject  under  review,  and  in  the  hope  that  their 
manifest  merits  may  lead  to  their  adoption  in  other  jurisdictions 
especially  in  those  whose  criminal  jurisprudence  is  conspicuously 
defective  in  that  there  is  an  utter  failure  to  efficiently  provide  for 
the  rights  of  one  under  criminal  indictment  who  wishes  to  secure 
the  testimony  of  a  material  witness  without  the  state. 

Chap.  3,  "  §  620.  "When  a  defendant  has  been  held  to  answer 
a  charge  of  a  crime,  he  may,  either  before  or  after  indictment, 
have  witnesses  examined  conditionally  on  his  behalf." 

"  §  621.  When  a  material  witness  for  the  defendant  is  about  to 
leave  the  state,  or  is  so  sick  or  infirm  as  to  afford  reason a 1  >le  grounds 
for  apprehending  that  he  will  be  unable  to  attend  the  trial,  the 
defendant  may  apply  for  an  order  that  the  witness  be  examined 
conditionally." 

"§  622.  The  application  must  be  made  upon  the  affidavit 
showing : 

"1.  The  nature  of  the  crime  charged; 

"2.  The  state  of  the  proceedings  in  the  action; 

"3.  The  name  and  residence  of  the  witness,  and  that  his  testi- 
mony is  material  to  the  defense  of  the  action;  and, 

"4.  That  the  witness  is  about  to  leave  the  state,  or  is  so  sick  or 
infirm  as  to  afford  reasonable  grounds  for  apprehending  that  he 
will  be  unable  to  attend  the  trial. 

*  •;:-  *  *  *  #  *  *  -"•  # 

"§  627.  On  proof  being  furnished  to  the  officer  before  whom  the 
examination  is  appointed,  of  the  service  upon  the  district  attorney, 


390  LAW    OF    EVIDENCE    IN    CRIMINAL    CASES. 

of  a  copy  of  the  order,  and  of  the  affidavit  on  which  it  was  granted, 
if  no  counsel  appear  on  the  part  of  the  people,  the  examination 
must  proceed." 

"§  628.  If  the  district  attorney  or  other  counsel  appear  on  the  part 
of  the  people,  and  it  be  shown  to  the  satisfaction  of  the  court  or 
officer,  by  affidavit  or  other  proof,  or  on  the  examination  of  the 
witness,  that  he  is  not  about  to  leave  the  state,  or  is  not  sick  or 
infirm,  or  that  the  application  was  made  to  avoid  the  examination 
of  the  witness  on  the  trial,  the  examination  cannot  take  place; 
otherwise  it  must  proceed." 

"§  629.  The  testimony  given  by  the  witness  must  be  reduced  to 
writing,  and  authenticated  in  the  same  manner  as  the  testimony 
of  a  witness  taken  in  support  of  an  information,  as  prescribed  in 
section  200." 

"§  630.  The  deposition  must  be  retained  by  the  officer  taking  it, 
and  filed  by  him  in  the  office  of  the  clerk  of  the  court  without 
unnecessary  delay." 

"§  631.  The  deposition,  or  certified  copy  thereof,  may  be  read 
in  evidence  by  either  party  on  trial,  upon  its  appearing  that  the 
witness  is  unable  to  attend,  by  reason  of  his  death,  insanity,  sick- 
ness or  infirmity,  or  of  his  continued  absence  from  the  state." 

"§  632.  The  deposition  cannot,  however,  be  read  if  it  appear  that 
the  copy  of  the  order  and  of  the  affidavit  on  which  it  was  founded 
was  not  served  on  the  district  attorney,  as  directed,  or  that  the 
examination  was  in  any  respect  unfair  or  not  conducted  as  pre- 
scribed in  this  chapter." 

"§  633.  Upon  the  reading  of  the  deposition  in  evidence,  the  same 
objection  may  be  taken  to  a  question  or  answer  contained  therein 
as  if  the  witness  had  been  examined  orally  in  court." 

"§  634.  The  attendance  of  the  witness  may  be  enforced,  by  a 
subpcena  subscribed  by  the  officer,  or  issued  under  the  seal  of  the 
court." 

"§  635.  Disobedience  to  the  subpoana,  or  a  refusal  to  be  sworn 
or  to  testify,  may  be  punished  by  the  court  or  officer,  as  prescribed 
in  section  619." 

Chap.  4.  "§  636.  When  an  issue  of  fact  is  joined  upon  an  indict- 
ment, the  defendant  may  have  any  material  witness  residing  out  of 
the  state,  examined  in  his  behalf,  as  prescribed  in  this  chapter, 
and  not  otherwise." 

"S  637.  "When  a  material  witness  for  the  defendant  resides  out 


DEPOSITIONS    IN    CRIMINAL    CASES.  391 

•of  the  state,  the  defendant  may  apply  for  an  order  that  the  wit- 
ness be  examined  on  a  commission." 

"§  638.  A  commission  is  a  process  issued  under  the  seal  of  the 
court  and  the  signature  of  the  clerk,  directed  to  one  or  more  per- 
sons, designated  as  commissioners,  authorizing  them  to  examine 
the  witness  upon  oath,  on  interrogatories  annexed  thereto,  and  to 
take  and  return  the  deposition  of  the  witness,  according  to  the 
•directions  given  with  the  commission." 

"§  630.  The  application  must  be  made  upon  affidavit,  showing : 

"1.  The  nature  of  the  crime  charged ; 

"2.  The  state  of  the  proceedings  in  the  action,  and  that  issue  of 
fact  has  been  joined  therein; 

"3.  The  name  of  the  witness,  and  that  his  testimony  is  material 
to  the  defense  of  the  action; 

"4.  That  the  witness  resides  out  of  the  state." 

"§  640.  The  application,  if  made  during  the  term,  must  be  made 
to  the  court." 

"§  641.  If  not  made  during  the  term,  the  application  may  be 
made  as  follows : 

"1.  "When  the  indictment  is  pending  in  a  court  of  oyer  and 
terminer,  or  in  a  court  of  sessions,  except  in  the  city  and  county 
of  New  York,  to  a  judge  of  the  supreme  court  or  to  the  county 
judge; 

"2.  When  the  indictment  is  pending  in  the  court  of  general  ses- 
sions in  the  city  and  county  of  New  York,  to  the  recorder  or  city 
judge  or  judge  of  general  sessions,  or  to  one  of  the  judges  of  the 
court  of  common  pleas  of  that  city; 

"3.  When  the  indictment  is  pending  in  a  city  court,  to  the  re- 
corder or  judge  of  the  court  in  which  it  is  pending." 

"§  642.  If  the  application  be  made  to  the  court,  it  may  be  without 
notice  to  the  district  attorney,  unless  the  court  direct  notice  to  be 
given,  in  which  case  it  must  prescribe  the  manner  of  giving  the 
same.  If  made  to  one  of  the  officers  mentioned  in  the  last  sec- 
tion, the  application  must  be  upon  five  days'  notice:  to  the  district 
attorney  served,  with  a  copy  of  the  allidavit  upon  which  it  is 
founded." 

"§  643.  If  the  court  or  officer  to  whom  the  application  is  made  be 
satisfied  that  the  witness  resides  out  of  the  stale,  and  thai  his 
examination  is  necessary  to  the  attainment  of  justice,  an  order 
must  be  made  that  a  commission  be  issued  to  take  his  testimony, 


;',',l2  LAW    OF    EVIDENCE    I\    CRIMINAL   CASES. 

and  that  the  people  be  permitted  to  join  in  the  commission,  and 
to  examine  witnesses  in  support  of  the  indictment." 

"§  644.  [f  the  application  for  a  commission  be  granted,  the  court 
or  judge  must  insert  in  the  order  therefor,  a  direction  that  the  trial 
of  the  indictment  be  stayed  for  a  specified  time,  reasonably  suffr 
cienl  for  the  execution  and  return  of  the  commission." 

"§•645.  When  the  commission  is  ordered,  the  defendant  must 
serve  up.,]]  the  district  attorney,  and  the  district  attorney,  if  he  in- 
tend to  join  in  the  commission  and  examine  witnesses  in  support  of 
the  indictment,  must  serve  upon  the  defendant  or  his  counsel,  a. 
copy  of  the  interrogatories  to  be  annexed  thereto,  with  a  notice  to 
two  days  of  their  settlement,  before  an  officer  who  might  have 
granted  the  order  out  of  term,  as  provided  in  section  641." 

"§  646.  The  district  attorney,  and  the  defendant,  may,  in  the 
same  manner,  serve  cross-interrogatories,  to  be  annexed  to  the 
commission,  with  the  like  notice  of  the  settlement  thereof." 

"§  047.  In  the  interrogatories,  either  party  may  insert  any  ques- 
tion pertinent  to  the  issue." 

••.  648.  Upon  the  settlement  of  the  interrogatories,  the  judge 
must  expunge  every  question  not  pertinent  to  the  issue,  and  modify 
the  questions,  so  as  to  conform  them  to  the  rules  of  evidence,  and. 
when  settled,  must  indorse  upon  them  his  allowance,  and  annex 
to  them  the  commission." 

"§  640.  Unless  the  parties  otherwise  consent,  by  an  indorsement 
upon  the  commission,  the  officer  must  indorse  thereon  a  direction, 
as  to  the  manner  in  which  it  must  be  returned,  and  may,  in  his  discre- 
tion, direct  that  it  be  returned  by  mail  or  otherwise,  addressed  to 
the  clerk  of  the  court  in  which  the  indictment  is  pending,  desig- 
nating  his  name  and  the  place  where  his  office  is  kept." 

•■;  ''>.~.i>.  The  commissioners,  or  any  one  of  them,  unless  otherwise 
specially  directed,  may  execute  the  commission  as  follows : 

"1.  They  musl  publicly  administer  an  oath  to  the  witness,  that 
his  answers  given  to  the  interrogatories  shall  be  the  truth,  the 
whole  truth,  and  nothing  but  the  truth; 

"2.  They  must  cause  the  examination  of  the  witness  to  be  re- 
duced to  writing; 

•••"..  They  must  write  the  answers  of  the  witness,  as  nearly  as- 
possible  in  the  language  in  which  he  gives  them,  and  read  to  him 
each  answer  as  it  is  taken  down,  and  correct  or  add  to  it,  until  it 
is  made  conformable  to  what  he  declares  the  truth; 


DEPOSITIONS   IN    CRIMINAL   CASES.  393 

"4.  If  the  witness  decline  answering  a  question,  that  fact,  with 
the  reason  for  which  he  declines  answering  it,  as  he  gives  it,  must 
be  stated; 

"5.  If  papers  or  documents  are  produced  before  them,  and  proved 
by  the  witness,  they  must  be  annexed  to  his  deposition,  and  be 
subscribed  by  the  witness  and  certified  by  the  commissioners; 

"6.  The  commissioners  must  subscribe  their  names  to  each' sheet 
of  the  deposition,  and  annex  the  deposition,  with  the  papers  or 
documents  proved  by  the  witness,  to  the  commission,  and  must 
close  it  up  under  seal  and  address  it,  as  directed  thereon; 

"7.  If  there  be  a  direction  on  the  commission,  to  return  it  by 
mail,  the  commissioners  must  immediately  deposit  it  in  the  near- 
est postoffice.  If  any  other  direction  be  made,  by  the  written 
consent  of  the  parties,  or  by  the  officer,  on  the  commission,  as  to 
its  return,  they  must  comply  with  the  direction." 

"§  651.  A  copy  of  the  last  section  must  be  annexed  to  the  com- 
mission." 

"§  652.  If  the  commissi*  >n  and  return  be  delivered  by  the  commis- 
sioners to  an  agent,  he  must  deliver  it  to  the  clerk  to  whom  it  is 
directed,  or  to  a  judge  of  the  court  in  which  the  indictment  is 
pending,  by  whom  it  may  be  received  and  opened,  upon  the  affi- 
davit of  the  agent  that  he  received  it  from  the  hands  of  one  of 
the  commissioners,  and  that  it  has  not  been  opened  or  altered 
since  he  received  it."' 

"§  653.  If  the  agent  be  dead,  or  from  sickness  or  other  casualty. 
unable  personally  to  deliver  the  commission  and  return,  as  prescribed 
in  the  last  section,  it  may  be  received  by  the  clerk  or  judge  from 
any  other  person,  upon  his  making  an  affidavit  that  he  received  it 
from  the  agent,  that  the  agent  i>  dead,  or  from  sickness  or  other 
casualty,  unable  to  deliver  it,  that  it  has  not  I  teen  opened  or 
altered  since  the  person  making  the  affidavit  received  it,  and  that 
he  believes  it  has  not  been  opened  or  altered  since  it  came  from 
the  hands  of  the  commissioner.-." 

"§  654.  The  clerk  or  judge  receiving  and  opening  the  commission 
and  return  must  immediately  tile  it,  with  the  affidavit  mentioned  in 
the  last  two  sections,  in  the  office  of  the  clerk  of  the  court  in 
which  the  indictment  is  pending." 

"§  655.  If  the  commission  and  return  be  transmitted  by  mail, 
the  clerk  to  whom  it  is  addressed  musl  open  and  file  it  in  his  office, 
where  it  must  remain,  unless  the  court  otherwise  direct." 


394  LAW    OF    EVIDENCE    IN    CRIMINAL   CASES. 

"§  656.  The  commission  and  return  must  at  all  times  be  open  to 
the  inspection  of  the  parties,  who  must  be  furnished  by  the  clerk 
with  copies  of  the  same,  or  of  any  part  thereof,  on  payment  of  his 
it  the  rate  of  five  cents  for  rvn-v  hundred  words." 

"§  657.  The  deposition,  taken  under  the  commission,  may  be 
read  in  evidence  by  either  party  on  the  trial,  and  the  same  objec- 
tion- may  be  taken  to  a  question  in  the  interrogatories,  or  to  an 
answer  in  the  deposition,  as  if  the  witness  had  been  examined 
orally  in  court." 

For  authorities  bearing  upon  the  general  subject  of  depositions, 
and  conditional  examination  under  the  practice  above  outlined, 
see  People  v.  Guidiei,  100  K  Y.  507;  People  r.Ward,  4  Park. 
Crim.  Rep.  516;  Mauer  v.  People,  43  X.  Y.  1;  People  v.Pestell, 
3  Hill,  289;  Webster  v.  People,  02  X  Y.  422;  Peoples.  Vermil- 
.  7  ( low.  369;  People  v.  Squire,  3  X.  Y.  S.  K.  194. 

§  246.  Statement  of  the  English  and  California  Rule.— A 
deposition  taken  for  the  perpetuation  of  testimony  in  criminal 
-.  under  30  &  31  Yict.  chap.  35,  §  6,  may  be  produced  and 
read  as  evidence,  either  for  or  against  the  accused,  upon  the  trial 
of  any  offender  or  offense  to  which  it  relates — if  the  deponent  is 
proved  to  be  dead  or  if  it  is  proved  that  there  is  no  reasonable 
probability  that  the  deponent  will  ever  be  able  to  travel  or  to  give 
evidence,  and  if  the  deposition  purports  to  be  signed  by  the  justice 
by  or  before  whom  it  purports  to  be  taken,  and  if  it  is  proved  to 
the  satisfaction  of  the  court  that  reasonable  notice  of  the  intention 
to  take  such  deposition  was  served  upon  the  person  (whether 
prosecutor  or  accused)  against  whom  it  is  proposed  to  be  read,  and 
that  such  person  or  his  counsel  or  attorney  had  or  might  have 
had,  if  he  had  chosen  to  be  present,  full  opportunity  of  cross- 
examining  the  deponent.     Stephen,  Dig.  art.  141. 

"§  1335.  When  a  defendant  has  been  held  to  answer  a  charge  for 
a  public  offense,  he  may,  either  before  or  after  an  indictment  or 
information,  have  witnesses  examined  conditionally,  on  his  behalf, 
as  prescribed  by  this  chapter,  and  not  otherwise. 

••.'  L336.  When  a  material  witness  for  the  defendant  is  about  to 
leave  the  state,  or  is  so  sick  or  infirm  as  to  afford  reasonable  grounds 
for  apprehending  that  he  will  be  unable  to  attend  the  trial,  the 
defendant  may  apply  for  an  order  that  the  witness  be  examined 
•conditionally. 

"§  1337.  The  application  must  he  made  upon  affidavit,  stating — 

1.  The  nature  of  the  offense  charged. 


DEPOSITIONS    IN    CRIMINAL    CASES.  395 

2.  The  state  of  the  proceedings  in  the  action. 

3.  The  name  and  residence  of  the  witness,  and  that  his  testi- 
mony is  material  to  the  defense  of  the  action. 

4.  That  the  witness  is  about  to  leave  the  state,  or  is  so  sick  or 
infirm  as  to  afford  reasonable  grounds  for  apprehending  that  he 
will  not  be  able  to  attend  the  trial. 

"§  1338.  The  application  may  be  made  to  the  court,  or  to  a  judge 
thereof,  and  must  be  made  upon  three  days'  notice  to  the  district 
■attorney. 

"§  1339.  If  the  court  or  judge  is  satisfied  that  the  examination  of 
the  witness  is  necessary,  an  order  must  be  made  that  the  witness  be 
examined  conditionally,  at  a  specified  time  and  place,  and  that  a 
•copy  of  the  order  be  served  on  the  district  attorney  within  a  speci- 
fied time  before  that  fixed  for  the  examination. 

"§  1340.  The  order  must  direct  that  the  examination  be  taken 
before  a  magistrate  named  therein,  and  on  proof  being  furnished 
to  such  magistrate  of  service  upon  the  district  attorney  of  a  copy 
of  the  order,  if  no  counsel  appear  on  the  part  of  the  people,  the 
examination  must  proceed. 

"§  1311.  If  the  district  attorney  or  other  counsel  appear  on  behalf 
of  the  people,  and  it  is  shown  to  the  satisfaction  of  the  magistrate,  by 
affidavit  or  other  proof,  or  on  the  examination  of  the  witness,  that 
he  is  not  about  to  leave  the  state,  oris  not  sick  or  infirm,  or  that  the 
application  was  made  to  avoid  the  examination  of  the  witness  on  the 
trial,  the  examination  cannot  take  place;  otherwise  it  must  proceed. 

"§  1312.  The  attendance  of  the  witness  may  be  enforced  by  a 
subpoena,  issued  by  the  magistrate  before  whom  the  examination 
is  to  be  taken. 

"§  1343.  The  testimony  given  by  the  witness  must  be  reduced 
to  writing,  and  authenticated  in  the  same  manner  as  the  testimony 
of  a  witness  taken  in  support  of  an  information. 

"§  1344.  The  deposition  taken  must,  by  the  magistrate,  be  sealed 
up  and  transmitted  to  the  clerk  of  the  court  in  which  the  action 
is  pending  or  may  come  for  trial. 

"§  1315.  The  deposition  or  a  certified  copy  thereof,  may  be  read 
in  evidence  by  either  party  on  the  trial,  upon  its  appearing  that  the 
witness  is  unable  to  attend,  by  reason  of  his  death,  insanity,  sick- 
ness, or  infirmity,  or  of  his  continued  absence  from  the  state. 
Upon  reading  the  deposition  in  evidence,  the  same  objection  may 
be  taken  to  a  question  or  answer  contained  therein  as  if  the  wit- 
ness had  been  examined  orally  in  court. 


396  LAW    OF   EVIDENCE    IN    CRIMINAL   CASES. 

"§  1346.  "Where  a  material  witness  for  a  defendant,  under  a  crim- 
inal charge,  is  a  prisoner  in  the  state  prison,  or  in  the  county  jail  or 
a  county  other  than  that  in  which  the  defendant  is  to  be  tried,  his 
deposition  may  be  taken,  on  behalf  of  the  defendant,  in  the  man- 
lier provided  for  in  the  case  of  a  witness  who  is  sick,  and  the  pro- 
visions of  the  penal  code,  commencing  with  section  thirteen 
hundred  and  thirty-five,  and  ending  with  section  thirteen  hundred 
and  forty-five,  shall,  so  far  as  applicable,  govern  in  the  application 
for  and  in  the  taking  and  use  of  such  deposition.  Such  deposi- 
tion may  be  taken  before  any  magistrate  or  notary  public  of  the 
county  in  which  the  jail  or  prison  is  situated;  or  in  case  the  wit- 
ness is  confined  in  the  state  prison,  and  the  defendant  is  unable 
to  pay  for  taking  the  deposition,  before  the  warden  or  clerk  of 
the  board  of  directors  of  the  state  prison,  whose  duty  it  shall  be 
to  act  without  compensation.  Every  officer,  before  whom  testi- 
mony shall  be  taken  by  virtue  hereof,  shall  have  authority  to 
administer,  and  shall  administer,  an  oath  to  the  witness  that  his 
testimony  shall  be  the  truth,  the  whole  truth,  and  nothing  but  the 
truth."     Desty,  Penal  Code  of  California,  chap.  4. 

§  247.  Examination  of  Witnesses  Conditionally  for  the 
Accused. — As  previously  stated,  the  right  to  introduce  a  deposi- 
tion in  evidence  in  a  criminal  prosecution  is  regulated  entirely  by 
statute.  In  some  jurisdictions  provision  is  made  for  taking  depo- 
sitions for  the  benefit  of  the  accused  beyond  the  limits  of  the 
state,  while  denying  such  privilege  to  the  prosecution.  People  v. 
Howard,  50  Mich.  241;  Newton  v.  State,  21  Fla.  53.  And  it 
should  be  observed  that  where  the  local  law  countenances  this 
method  of  procedure,  the  provisions  of  that  law  must  be  strictly 
followed.  People  v.  Mitchell,  <;4  Cal.  85.  So  it  has  been  held 
that  the  prosecution  cannot  read  on  the  trial  a  deposition  taken 
before  trial,  unless  the  defendant  was  present  when  the  deposition 
was  taken.  Maurer  v.  People,  43  N.  Y.  1;  ]N".  Y.  Code  Crim. 
Proc.  §  8.  subd.  3;  1  Bishop,  Crim.  Proc.  (3d  ed.)  §  265.  The 
absence  of  the  prisoner  has  been  held  to  render  the  deposition 
inadmissible.     Peojph  v.  Restell,  3  Hill,  289. 

A  deposition  is  not  entitled  to  the  same  weight  and  credence  as 
oral  testimony.  State  v.  Grant,  79  Mo.  113,  40  Am.  Rep.  218. 
After  reading  a  deposition  in  evidence,  it  has  been  held  that  the 
deponent  cannot  afterwards  be  examined  orally  at  the  same  trial 
(State  v.  Kring,  74  Mo.  612);  but  the  reason  for  this  ruling  seems 
rather  unsatisfactory.     Rapalje,  Crim.  Proc.  §  279. 


PART  III. 


EVIDENCE  FOR  THE  PROSECUTION. 

CHAPTER  XXXIY. 

EVIDENCE  AFFORDED  BY  THE  INDICTMENT. 

§  248.    What  Allegations  must  be  Proved  and  what  may  lie  Suggested. 

249.  Phillips  "Three  Rules"  Stated. 

250.  Characteristics  of  an  Indictment. 

251.  Rule  Observed  in  Framing. 

252.  Former  Strictness  Relaxed. 

253.  Names  of  Witnesses  must  be  Indorsed  upon  Indictment. 

254.  Evidence  of  Time  and  Place. 

255.  Quashing  Indictment  Founded  on  Illegal  Evidence  Given  be- 

fore the  Grand  Jury. 

256.  Wlien  Evidence  Introduced  to   Sustain  Indictment  mag  be 

Stricken  out.  * 

a.  Examination  of  the  Principle   Affecting  this  Right  to 

Exclude. 

b.  Views  of  Justice  McGowan  and  Others. 

c.  Prejudice  must  have  Resulted  or  Incompetent  Evidence 

will  Stand. 

d.  When  Incompetent  Evidence  is  not  Deemed  Harmless. 

e.  Wlien  Motion  to  Strike  out  must  be  Made. 

§  248.  What  Allegations  must  he  Proved  and  what  may 
he  Suggested. — In  the  present  chapter  it  is  proposed  to  consider, 
1st.  What  allegations  in  an  indictment  must  be  proved  to  support  it, 
and  what  may  be  disregarded  in  evidence;  and  2d.  With  what 
precision  those  allegations,  which  cannot  be  disregarded  in  evi- 
dence, must  be  proved. 

"1.  In  order  to  convict  a  man  of  an  offense,  all  the  material  facts 
which  constitute  the  offense,  and  which  are  necessary  to  enable 
the  parties  to  avail  themselves  of  the  verdict  and  judgment, 
should  the  same  charge  be  again  brought  forward,  must  be  stated 

397 


398  LAW    OF   EVIDENCE   IN   CRIMINAL   CASES. 

upon  the  indictment;  and  all  these  requisite  allegations  must  be- 

satisfied  in  evidence,  and  proved  as  laid.     But  allegations  not 

essential  to  such  a  purpose,  which  might  be  entirely  omitted,. 

without  affecting  the  charge  against  the  prisoner,  and.  without 

detriment  to  the  indictment,  are  considered  as  mere  surplusage,. 

and  may  be  disregarded  in  evidence. 

********** 

"In  considering  the  subject  of  surplusage,  it  must  always  be 
remembered  that  it  is  a  most  general  rule  that  no  allegation 
whether  necessary  or  unnecessary,  which  is  descriptive  of  the 
identity  of  that  which  is  legally  essential  to  the  charge  in  the  in- 
dictment, can  ever  be  rejected. 

********** 

"2.  It  is  to  be  considered  with  what  precision  of  proof  those 
allegations  which  cannot  be  disregarded  in  evidence  must  be  sup- 
ported; or,  in  other  words,  what  is  a  fatal  variance  between  a. 
material  averment  in  an  indictment,  and  the  evidence  adduced  in 
support  of  it.  The  general  rule  on  this  subject  is,  that  a  variance 
between  the  indictment  and  the  evidence  is  not  material  provided 

the  substance  of  the  matter  be  found. 

********** 

"And  with  respect  to  the  proof  of  the  offense  charged  the  rule  is 

universal  that  it  is  sufficient  if  the  evidence  agree  in  substance 

with  the  averments  in  the  indictment.     Thus,  on  an   indictment 

for  murder,  it  will  be  sufficient  if  the  manner  of  the  death  proved. 

agree  in  substance  with  that  charged. 

********** 

"In  criminal  prosecutions,  from  the  highest  offense  to  the  lowest, 
it  is  unnecessary  to  prove  the  time  of  committing  the  offense 
precisely  as  laid,  unless  that  particular  time  is  material;  and  the 
facts  may  be  proved  to  have  occurred  on  any  day  previous  to  the 
finding  of  the  bill  by  the  grand  jury."  2  Russell,  Crimes,  chap. 
2,  p.  '790,  §  3. 

J!y  express  sanction  of  the  Federal  law  which  may  be  regarded 
as  a  settled  principle  of  the  legal  polity  of  this  country,  the  ac- 
cused  lias  the  constitutional  right  "to  be  informed  of  the  nature  and 
cause  of  the  accusation."  U.  S.  Const.  6th  Amend.  In  United, 
i  v.  Mills,  32  U.  S.  7  Pet.  142,  8  L.  ed.  637,  this  was  con- 
strued to  mean,  that  the  indictment  must  set  forth  the  offense 
"with  clearness  and  all  necessary  certainty,  to  apprise  the  accused 
of  the  crime  with  which  he  stands  charged;1'  and  in  United  States 


EVIDENCE    AFFORDED    BY    THE    INDICTMENT.  399" 

v.  Cook,  84  U.  S.  17  "Wall.  174,  21  L.  ed.  539,  that,  "every  ingre- 
dient of  which  the  offense  is  composed  must  be  accurately  and 
clearly  alleged."  It  is  an  elementary  principle  of  criminal  plead- 
ing, that  where  the  definition  of  an  offense,  whether  it  be  by 
common  law  or  by  statute,  "includes  generic  terms,  it  is  not 
sufficient  that  the  indictment  shall  charge  the  offense  in  the  same- 
generic  terms  as  in  the  definition;  but  it  must  state  the  species — 
it  must  descend  to  particulars.  1  Archb.  Crim.  Pr.  &  PI.  291.. 
The  object  of  the  indictment  is  first,  to  furnish  the  accused  with 
such  a  description  of  the  charge  against  him  as  will  enable  him  to 
make  his  defense,  and  avail  himself  of  his  conviction  or  acquittal 
for  protection  against  a  further  prosecution  for  the  same  cause; 
and,  second,  to  inform  the  court  of  the  facts  alleged,  so  that  it 
may  decide  whether  they  are  sufficient  in  law  to  support  a  con- 
viction, if  one  should  be  had.  For  this,  facts  are  to  be  stated, 
not  conclusions  of  law  alone.  A  crime  is  made  up  of  acts  and 
intent;  and  these  must  be  set  forth  in  the  indictment,  with  rea- 
sonable particularity  of  time,  place,  and  circumstance. 

"Where  satisfactory  evidence  is  adduced  tending  to  show  that 
the  indictment  was  founded  upon  incompetent  or  insufficient 
evidence  a  motion  to  quash  is  in  order.  A  plea  in  abatement  will 
not  lie,  and  in  fact  should  never  be  allowed.  People  v.  Hulbut, 
4  Demo,  133;  State  v.  Boyd,  2  Hill,  L.  288;  United  States  v. 
Reed,  2  Blatchf.  435;  Turk  v.  State,  7  Ohio,  240;  State  v.  Day- 
ton, 23  ]ST.  J.  L.  49;  Spratt  v.  State,  8  Mo.  247;  Bex  v.  Dickenson, 
Kuss.  &  R.  401;  Reg.  v.  Russell,  Car.  &  M.  247. 

In  People  v.  Hulbut,  supra,  the  court,  per  Branson,  Chief 
Justice,  said :  "The  indictment  when  presented  in  due  form  by 
the  grand  jury  and  filed  in  court  is  a  record,  and,  like  other  rec- 
ords, imports  absolute  verity.  It  cannot  be  impeached  unless  it 
be  upon  motion  showing  that  it  was  not  founded  upon  sufficient 
evidence,  or  that  there  was  any  other  fault  or  irregularity  in  the 
proceedings." 

The  grand  jury  is  a  constituent  part  of  the  court  of  oyer  and 
terminer,  and  the  control  of  that  court  over  its  proceedings  con- 
tinues, and  may  be  thus  exercised  after  the  grand  jury  has 
adjourned.  People  v.  NaugUon,  7  Abb.  Pr.  N.  S.  421,  1 23,  424, 
38  How.  Pr.  430;  State  v.  Cowan,  1  Head,  280;  Clem  v.  State,  33- 
Ind.  418.  The  minutes  of  evidence  taken  before  the  grand  jury 
are  a  part  of  the  records  of  the  court  and  remain  in  the  custody 


400  LAW    OF    EVIDENCE   IN    CRIMINAL   CASES. 

of  one  of  its  officers.  State  v.  Little,  4.2  Iowa,  51.  A  court 
always  takes  judicial  notice  of  its  own  records  in  the  cause;  and 
this  though  not  brought  before  it  by  affidavit.  Craven  v.  Smith, 
L.  R.  4  Exch.  146. 

Every  pleading,  civil  or  criminal,  must  contain  allegations  of 
the  existence  of  all  the  facts  necessary  to  support  the  charge  or 
defense  set  up  by  such  pleading.  An  indictment  must  contain 
allegations  of  every  fact  necessary  to  constitute  the  criminal 
charge  preferred  by  it.  As,  in  order  to  make  acts  criminal,  they 
must  always  be  done  with  a  criminal  mind,  the  existence  of  that 
criminality  of  mind  must  always  be  alleged.  If,  in  order  to  sup- 
port the  charge,  it  is  necessary  to  show  that  certain  acts  have  been 
committed,  it  is  necessary  to  allege  that  those  acts  were  in  fact 
committed.  If  it  is  necessary  to  show  that  those  acts,  when  they 
were  committed,  were  done  with  a  particular  intent,  it  is  necessary 
to  aver  that  intention.  If  it  is  necessary,  in  order  to  support  the 
charge,  that  the  existence  of  a  certain  fact  should  be  negatived, 
that  negative  must  be  alleged.  Bradlatojh  v.  Reg.  L.  E.  3  Q.  B. 
007. 

It  is  also  a  familiar  and  elementary  principle  of  criminal  plead- 
ing that  an  indictment  upon  a  statute  must  state  all  the  circum- 
stances which  constitute  the  definition  of  the  offense  in  the  act,  so 
as  to  bring  the  defendant  precisely  within  it.  If  the  indictment 
may  be  true,  and  still  the  accused  may  not  be  guilty  of  the  offense 
described  in  the  statute,  the  indictment  is  insufficient.  So  where 
the  definition  of  an  offense,  whether  it  be  at  common  law  or  by 
statute,  includes  generic  terms,  it  is  not  sufficient  that  the  indict- 
ment shall  charge  the  offense  in  the  same  generic  terms  as  in  the 
definition,  but  it  must  state  the  species — it  must  descend  to  par- 
ticulars. Boyd  v.  Com.  77  Ya.  52.  This  rule  does  not  require 
that  the  w<  >rds  of  the  statute  should  be  precisely  followed.  Words 
of  equivalent  import  may  be  substituted,  or  words  of  more 
extensive  signification,  and  which  necessarily  include  the  words 
used  in  the  statute.  The  decisions  are  by  no  means  uniform  on 
the  subject. 

All  tarts  and  circumstances  stated  i*n  the  indictment  which 
cannot  be  rejected  as  surplusage,  must  be  proved;  and  all  descrip- 
tive averments  must  be  strictly  proved.  4  Am.  &  Eng.  Enc. 
Law,  title  Criminal  Procedure. 

The  rule  that  a  descriptive  averment  must  be  strictly  proved, 


EVIDENCE  AFFORDED  BY  THE  INDICTMENT.         401 

has  one  qualification  in  cases  of  homicide  and  felonious  assault. 
If  the  averment  is  that  the  homicide  was  caused,  or  the  assault 
•made,  in  a  designated  manner,  it  is  not  necessary  to  prove  strictly 
the  details  of  the  means  averred  to  have  been  used  in  so  commit- 
ting the  offense.  If  the  indictment  is  for  murder  by  poisoning, 
and,  it  is  averred,  by  poisoning  with  a  certain  drug,  the  indict- 
ment is  supported  by  proof  of  poisoning  with  a  different  drug. 
East,  P.  C,  chap.  5,  §  107.  A  charge  of  felonious  assault  with  a 
staff  will  be  sustained  by  proof  of  such  assault  with  another  bruising 
implement,  as  a  stone, — SliarwirCs  Case,  cited  in  1  East,  P.  C.  chap. 
•5,  §  107, — and  a  charge  of  strangling  by  clasping  both  hands 
about  the  throat,  is  sustained  by  proof  of  strangling  by  placing 
•one  hand  over  the  mouth.     Bex  v.  CulJdn,  5  Car.  &  P.  121. 

It  is  necessary  to  prove  matter  of  description  only  when  the 
averment,  of  which  the  descriptive  matter  forms  a  part,  is  ma- 
terial. Bishop,  Crim.  Proc.  §§  484,  487;  State  v.  Cqpp,  15  K  H. 
212;  State  v.  Bailey,  31  K  H.  521;  Rex  v.  May,  1  Dougl.  193; 
Bex  v.  Bippett,  1  T.  E.  235;  State  v.  Dame,  60  N.  H.  479,  49 
Am.  Pep.  331. 

The  public  prosecutor  may  insert  several  counts  in  the  same 
indictment  alleging  the  offenses  distinctly  and  separately,  in 
various  ways,  to  meet  the  evidence,  and  the  court  will  not  compel 
an  election  between  them  on  the  trial.  Nelson  v.  Beople,  5 
Park.  Crim.  Pep.  39.  And  as  was  said  by  Chancellor  "Walworth, 
in  Kane  v.  People,  8  Wend.  203  :  "It  is  every  day's  practice  to 
charge  a  felony  in  different  ways  in  several  counts  for  the  purpose 
of  reaching  the  evidence  as  it  appears  on  the  trial,"  and  "if  the 
different  counts  are  inserted  in  good  faith  for  the  purpose  of 
making  a  single  charge,  the  court  will  not  compel  the  prosecution 
to  elect."  I  am  not  aware  that  the  correctness  of  this  practice 
has  ever,  since  that  time,  been  questioned.  The  modern  doctrine 
is,  that  the  refusal  to  compel  an  election  in  such  a  case  cannot  be 
alleged  for  error,  but  is  a  matter  of  discretion.  People  v.  Baker, 
3  Hill,  159;  Cook  v.  People,  2  Thomp.  &  C.  404.  See  also  Bob- 
erts  v.  Beople,  9  Colo.  458;  Corley  v.  State,  50  Ark.  305.  We 
will  conclude  this  subject  by  an  extract  from  the  opinion  in 
Goodhue  v.  People,  94  111.  37 :  "If  two  or  more  offenses  form 
part  of  one  transaction,  and  are  such  in  nature  that  a  defendant 
may  be  guilty  of  both,  the  prosecution  will  not,  as  a  general  rule, 
be  put  to  an  election,  but  may  proceed  under  one  indictment  for 
26 


402  LAW    OF    EVIDENCE   IN    CRIMINAL   CASES. 

tlic  BeveraJ  offenses,  though  they  be  felonies.  ...  In  misde- 
meanors the  prosecution  may,  in  the  discretion  of  the  court  trying 
the  ease,  be  required  to  confine  the  evidence  to  one  offense,  or 
where  evidence  is  given  of  two  or  more  offenses,  may  be  required 
to  elect  one  charge  to  be  submitted  to  the  jury;  but  in  cases  of 
felony  it  is  the  right  of  the  accused,  if  he  demand  it,  that  he  be 
not  put  upon  trial  at  the  same  time  for  more  than  one  offense, 
except  in  cases  where  the  several  offenses  are  respectively  parts 
"f  the  same  transaction." 

249.  LMiillips  "-Three  Rules"  Stated.— Fixed  rules  must 
!>e  observed  for  the  discovery  of  truth.  Of  these  the  following 
are,  perhaps,  the  chief : 

"1.  The  actual  commission  of  the  crime  itself  shall  be  clearly 
established. 

"2.  Each  circumstance  shall  be  distinctly  proved. 

"3.  When  the  leading  fact  or  crime  is  only  to  be  collected  from 
circumstances,  a  material  variation  in  these  will  defeat  the  effect 
of  the  whole.  For,  as  each  particular  is  to  have  an  effect  upon 
the  general  conclusion,  a  variation  in  the  circumstances  may  give 
a  different  color  to  the  whole  transaction.  A  system  of  proposi- 
tions is  only  true  because  each  of  the  propositions  of  which  it  is 
composed  is  true."     Phillips,  Famous  Cases,  Circ.  Ev.  Intro.  35. 

50.  Characteristics  of  an  Indictment. — The  indictment 

is  the  formal  written  accusation  of  one  or  more  persons  of  a  crime 
or  misdemeanor  preferred  to,  and  presented  upon  their  oath  by,  a 
grand  jury.  In  strict  legal  parlance  it  is  not  so  called  until  the 
hill  has  been  found  "a  true  bill."  4  Bl.  Com.  302;  Archb.  Crim. 
Pr.  &  PI.  1.  58,  59.  The  action  of  the  grand  jury  upon  bills  of 
indictment  is  very  important  to  individuals  and  the  public.  On 
the  one  hand,  the  safety,  good  order  and  well-being  of  society  are 
to  be  affected  for  good  or  evil  by  it,  and,  on  the  other,  a  person 
should  m  it  be  causelessly  accused  of  crime.  This  should  be  done 
upon  solemn  consideration, and  for  reasonable  apparent  cause.  It 
may  be  of  great  consequence  to  the  accused  whether  the  accusa- 
tion be  well  or  ill  founded.  Such  bills  are  not  to  be  treated 
ly,  but  seriously;  the  action  of  the  grand  jury  must  be  based, 
not  merely  upon  conjecture,  suspicion,  mere  information  that 
they,  or  a  member  or  members  of  their  body,  may  know,  but  upon, 
the  testimony  of  witnesses  duly  sworn,  or  other  evidence  that 


EVIDENCE    AFFORDED    BY    THE    INDICTMENT.  403 

comes  before  them  duly  authenticated.  If  a  grand  juror  has 
knowledge  of  facts  material,  he  should  be  sworn  as  a  witness  and 
examined  as  such.     State  v.  Cain,  8  X.  C.  352. 

The  grand  jury  is  an  inquisitorial  and  accusing  body;  they  hear 
only  the  evidence  on  behalf  of  the  prosecution.  The  finding  of 
the  bill  of  indictment  is  in  the  nature  of  an  inquiry  or  accusation 
which  is  afterwards  to  be  tried  when  the  accused  will  have  oppor- 
tunity to  make  defense.  They  must  inquire  whether  there  be 
sufficient  cause  to  call  upon  the  accused  party  to  answer,  but  such 
inquiry  must  be  founded  upon  proper  evidence.  They  do  not  act 
in  the  light  of  evidence  the  accused  may  produce  in  his  behalf 
upon  his  trial,  but  they  should  be  satisfied  of  the  truth  of  the 
charge  contained  in  the  bill  of  indictment,  so  far  as  the  evidence 
goes.  It  is  essential  that  witnesses  should  be  sworn  and  compe- 
tent. State  v.  Fellows,  3  N.  C.  340.  It  was  held  when  the  in- 
dictment was  found  upon  the  single  testimony  of  an  incompetent 
witness,  it  should  be  quashed.  And  it  has  been  repeatedly  held 
that  the  indictment  should  be  quashed  where  the  same  was  found 
upon  the  evidence  of  witnesses  not  sworn.  State  v.  Cam,  8  ~N. 
C.  352;  State  v.  Roberts,  19  X.  C.  540;  State  v.  Lanier,  90  N.  C. 
714;  State  v.  Ivey,  100  K  C.  539. 

An  indictment  duly  found  affords  a  presumption  of  guilt.  See 
Ex  parte  Ryan,  44  Cal.  555. 

§  251.  Rule  Observed  in  Framing. — Mr.  Rapalje  in  his  Crim- 
inal Procedure  at  section  87.  says:  "The  general  rule  in  framing 
an  indictment  is,  that  the  offense  shall  be  so  described  that  the 
defendant  may  know  how  to  answer  it,  the  court  what  judgment 
to  pronounce,  and  that  a  conviction  or  acquittal  on  it  may  be 
jfieaded  in  bar  to  any  other  indictment  for  the  same  offense.  The 
accused  must  be  apprised  of  every  ingredient  of  the  crime  with 
which  he  stands  charged;  and  matters  material  to  constitute  the 
crime  must  be  set  forth  with  sufficient  fullness  to  enable  him  to 
know  with  reasonable  certainty  what  he  has  to  meet,  and  so  posi- 
tively and  distinctly  as  to  leave  nothing  to  intendment  or  impli- 
cation." State  v.  Shirer,  20  S.  C.  392:  People  v.  Graves,  5  Park. 
Crim.  Rep.  134;  McConnell  v.  State,  22  Tex.  App.  354,  58  Am. 
Rep.  047;  United  States  v.  Goggin,  1  Fed.  Rep.  4'.*;  t  niU  d  StaU  s 
v.  Cruihshank,  92  TJ.  S.  542,  23  L.  ed.  588;  Statt  v.  Mace,  76 
ALe.  04;  Greene  v.  State,  79  Ind.  537;   Kearney  v.  State,  48  Md. 


494  LAW    OF    EVIDENCE   IX   CRIMINAL   CASES. 

16;  Hunt  v.  State,  0  Tex.  App.  404;  Parker  v.  State,  9  Tex.  App. 
351;  Houston  v.  State,  13  Tex.  App.  595;  Caldwell  v.  State,  14 
Tex.  App.  171. 

The  same  well  known  author  says  at  section  91,  in  speaking  of 
disjunctive  and  conjunctive  averments:  "When  independent 
clauses  in  a  statute  are  connected  by  the  conjunction  'or,'  the 
prosecution  need  satisfy  but  one  of  the  alternatives.  An  indict- 
ment in  such  a  case  may  count  upon  all  the  clauses  by  substitut- 
ing the  copulative  for  the  disjunctive  conjunction,  where  the  lat- 
ter is  used  in  the  statute;  but,  at  the  election  of  the  pleader,  the 
indictment  may  count  upon  any  one  of  the  alternative  clauses 
which  independently  define  the  offense.  The  use  of  the  disjunc- 
tive 'or'  is  fatal  in  charging  a  criminal  offense."  BerUnger  v. 
.  0  Tex.  App.  181;  State  v.  Fancher,  71  Mo.  460;  State  v. 
.ird,  76  Mo.  322;  State  v.  Carr,  6  Or.  133;  State  v.  Berg- 
man, 6  Or.  341;  State  v.  Dale,  8  Or.  229;  State  v.  Price,  11  K 
J.  L.  241;  State  v.  Carver,  12  K.  I.  2S5;  Hart  v.  State,  2  Tex. 
App.  39;  State  v.  O'Bannon,  1  Bail.  L.  144;  State  v.  Flint,  62 
Mo.  393. 

An  indictment  must  be  so  drawn  as  to  exclude  any  assumption 
that  the  indictment  may  be  proved  and  the  defendant  still  be 
innocent.  State  v.  Melville,  11  R.  I.  418;  State  v.  Smith,  11  Or. 
205. 

jS"o  principle  of  criminal  pleading  is  better  settled  than  this: 
"If  the  indictment  contains  one  good  count,  it  is  sufficient,  and 
this  notwithstanding  there  may  be  defective  counts.  Phelps  v. 
People,  72  N.  T.  365;  People  v.  Davis,  56  1ST.  Y.  95;  Guenther 
v.  People,  24  X.  Y.  100;  Crichton  v.  People,  6  Park.  Crim.  Rep. 
363,  1  Keyes,  344,  1  Abb.  App.  Dec.  470;  People  v.  Stein,  1 
Park.  Crim.  Pep.  202;  Baron  v.  People,  1  Park.  Crim.  Rep.  246; 
PeopU  v.  Gilkinson,  4  Park.  Crim.  Rep.  26;  LaBeau  v.  People, 
:;r.  EIow.  Pr.  ,70;  Peed  v.  Keese,  60  K  Y.  616;  Lyons  v.  People, 
68  111.  272;  Latham  v.  Reg.  \)  Cox,  C.  C.  516;  Cook  v.  State,  49 
Miss.  9;  Estes  v.  State,  55  Ga.  131;  Adams  v.  State,  52  Ga.  565; 
Chappell  x.  State,  52  Ala.  359;  1  Bishop,  Crim.  Proc.  (2d  ed.) 
§  1015;  3  Whart.  Crim.L.  (7th  ed.)  §§  3208,  3209;  People  v.  Gon- 
zales, 35  X.  Y.  60;   Wood  v.  People,  59  K  Y.  117. 

"An  indictment  containing  a  count  charging  murder  in  the  com- 
mon law  form,  if  sustained  by  evidence,  justifies  a  conviction  for 
any  of  the  degrees  of  felonious  homicide  known  to  the  law.    This 


EVIDENCE   AFFORDED   BY    THE    INDICTMENT.  .     405 

lias  been  the  well  settled  law  in  Kew  York  for  upwards  of  half  a 
century.  People  v.  Enoch,  13  Wend.  159;  People  V.  White,  22 
Wend.  1G7;  Fitzgerrold  v.  People,  37  K  Y.  413;  Kennedy  v. 
People,  39  1ST.  Y.  245;  Cfo  v.  People,  SO  K  Y.  500;  People  v. 
6W'oy,  97  K  Y.  G2,  2  K  Y.  Crim.  Rep.  r>t\:>.  This  is  the  well 
settled  rule  in  many  of  the  other  states.  White  v.  Com.  6  Binn. 
179;  Puller  v.  State,  1  Blackf.  63;  Wicks  v.  6W  2  Ya.  Cas.  387; 
Mitchell  v.  z&'tffo,  5  Yerg.  340,  8  Yerg.  514;  Com.  v.  Flanagan, 
7  Watts  &  S.  415;  Ilines  v.  /Sitofc,  8  Humph.  597;  Gehrke  v. 
tftate,  13  Tex.  508;  Wall  v.  State,  18  Tex.  682,  70  Am.  Dec.  302; 
Livingston  v.  6ro??2.  14  Gratt.  592;  Cbm.  v.  Gardner,  11  Gray, 
438;  People  v.  Dolan,  9  Cal.  570;  CW.  v.  Desmarti  au,  16  Gray, 
1;  c?/vr/,  v.  Cbw.  12  Allen,  170;  Witt  v.  fltofe,  6  Coldw.  5;  J/b- 
Adams  v.  State,  25  Ark.  405;  $tate  v.  P//^,  49  KH.  399,  6  Am. 
Rep.  533;  State  v.  Thompson,  12  ]Sev.  140. 

"The  authorities  with  scarcely  an  exception,  agree  that  it  is 
absolutely  necessary,  in  charging  a  felony,  to  charge  that  the  act 
was  feloniously  done;  .  .  .  that  the  sukstance  of  a  good  com- 
mon-law indictment  should  be  preserved.  If  one  matter  of  sub- 
stance may  be  dispensed  with,  another  may  be,  and  where  is  the 
limit  to  the  innovation?  .  .  .  This  court  has  repeatedly  held 
that,  in  indictments  for  felonies,  the  word  'feloniously'  is  substan- 
tive in  charging  the  offense, — a  word  that  has  a  fixed  and  well 
defined  legal  meaning,  understood  by  bench  and  bar/'  Kaelin- 
v.  Com.  84  Ky.  354,  quoting  from  Mott  v.  State,  29  Ark.  147. 
See  also  Bowler  v.  State,  41  Miss.  570. 

§  252.  Former  Strictness  Relaxed. — The  strictness  with 
which  indictments  were  formerly  construed  has  been  considerably 
relaxed;  and  it  is  right  that  it  should  be  so,  while  the  substantial 
rights  of  the  accused  are  preserved.  The  natural  leaning  of  the 
mind,  observed  Lord  Kenyon  (Sharwin,s  Case,  1  East,  341),  is 
in  favor  of  prisoners,  and  in  the  mild  manner  in  which  the  laws 
of  this  country  are  administered  it  has  been  a  subject  of  com- 
plaint, with  some,  that  the  judges  have  given  way  too  easily  to 
formal  objections  in  behalf  of  prisoners.  Lord  Hale  remarks  (2 
Hale,  P.  C.  193)  that  the  strictness  required  in  indictments  was 
grown  to  be  a  blemish  and  inconvenience  in  the  law,  and  the 
administration  thereof;  that  more  offenders  escape  by  the  over 
ea.sy  ear  given  to  exceptions  to  indictments  than  by  the  manifesta- 


406  LAW    OF    EVIDENCE    IN    CRIMINAL    CASES. 

tion  of  their  innocence,  and  that  the  greatest  crimes  had  gone 
unpunished,  by  reason  of  these  unseemly  niceties.  Chitty  also 
remarks  (1  Chitty,  Crim.  L.  171)  that  in  criminal  cases,  where 
the  public  security  is  so  deeply  interested  in  the  prompt  execution 
of  justice,  it  seems  the  minor  consideration  should  give  way  to  the 
greater,  mid  technical  objections  be  overlooked,  and  as  a  practical 
vindication  of  this  view  we  will  cite  the  well  settled  rule  that 
verbal  or  grammatical  inaccuracies,  which  do  not  affect  the  sense, 
are  not  fatal.  Mere  misspelling  is  not  fatal.  Whart.  Crim.  PI. 
&  Pr.  £  273;  Shay  v.  People,  22  N.  Y.  317;  State  v.  Gilmore,  9 
YV.  Va.  641;  State  v.  Hedge,  6  Ind.  333.  If  the  sense  be  clear, 
nice  exceptions  ought  not  to  be  regarded.  And  even  when  the 
sense  of  the  word  may  be  ambiguous,  this  will  not  be  fatal,  if  it  is 
sufficiently  shown  by  the  context  in  what  sense  the  phrase  or  word 
was  intended  to  be  used.  Bex  v.  Stevens,  5  East,  244,  260;  2 
Hale.  P.  C.  1 '.»•".;  State  v.  Edwards,  19  Mo.  674;  State  v.  Halida, 
23  ^Y.  Va.  499. 

§  253.  Names  of  Witnesses  must  be  Indorsed  upon  Indict- 
ment.— When  an  indictment  is  found,  the  names  of  the  witnesses 
examined  before  the  grand  jury,  or  whose  depositions  may  have 
been  read  before  them,  must  be  indorsed  upon  the  indictment 
before  it  is  presented  to  the  court.  If  not  so  indorsed  the  court 
must,  upon  the  application  of  the  defendant,  at  any  time  before 
the  trial,  direct  the  names  of  such  witnesses  as  they  appear  upon 
the  minutes  of  the  grand  jury,  to  be  furnished  to  him  forthwith. 
It  is  also  the  duty  of  the  prosecution  to  call  all  material  witnesses 
who  were  present  at  the  commission  of  the  crime,  or  any  who  had 
knowledge  of  it.  "The  commonwealth  demands  justice,  not  vic- 
tim.-." R-ict  v.  Coin.  102  Pa.  408.  This  rule,  however,  does  not 
require  the  prosecution  to  call  respondent's  wife  as  a  witness,  in 
order  that  she  may  be  cross-examined,  even  though  her  name  has 
been  indorsed  on  the  information  as  one  of  the  witnesses  for  the 
prosecution.     People  v.  Wolcott,  51  Mich.  612. 

The  rule  effecting  this  subject  as  laid  down  in  Poscoe  is  in  the 
following  language:  "Although  a  prosecutor  was  never  in  strict- 
ness bound  i"  call  every  witness  whose  name  is  on  the  back  of  the 
indictment,  yet  it  is  usual  to  do  so,  in  order  to  afford  the  prison- 
er's  counsel  an  opportunity  to  cross-examine  them;  and  if  the 
prosecutor  would  not  call  them,  the  judge  in  his  discretion  might. 
The  judges,  however,  have  now  laid  down  a  rule,  that  the  prosecutor 


EVIDENCE    AFFORDED    BY    THE    INDICTMENT.  407 

is  not  bound  to  call  witnesses  merely  because  their  names  are  on 
the  back  of  the  indictment,  but  that  the  prosecutor  ought  to  have 
all  such  witnesses  in  court,  so  that  they  may  be  called  for  the 
defense,  if  they  are  wanted  for  that  purpose.  If,  however,  they 
are  called  for  the  defense,  the  person  calling  them  makes  them 
his  own  witnesses."  See  Scott  v.  People,  63  111.  508;  Keener  v. 
State,  18  Ga.  194;  Hill  v.  People,  20  Mich.  196;  People  v.  Bon- 
ney,  19  Cab  426. 

The  prosecution  can  never,  in  a  criminal  case,  properly  claim  a 
conviction  upon  evidence  which  expressly  or  by  implication,  shows 
but  a  part  of  the  res  gestae,  or  whole  transaction,  if  it  appear  that 
the  evidence  of  the  rest  of  the  transaction  is  attainable.  Hurd  v. 
People,  25  Mich.  405,  415. 

"•Every  witness,"  he  said,  "who  was  present  at  a  transaction  of 
this  sort,  ought  to  be  called;  and  even  if  they  give  different 
accounts,  it  is  fit  that  the  jury  should  hear  their  evidence,  so  as  to 
draw  their  own  conclusion  as  to  the  real  truth  of  the  matter." 
Peg.  v.  Holden,  8  Car.  &  P.  609. 

The  rules  above  stated  as  to  the  witnesses  named  on  the  back 
•of  the  indictment,  in  no  way  compel  the  state's  attorney  to  place 
them  on  the  stand.  State  v.  Cain,  20  W.  Va.  079.  All  that  the 
rule  requires  is  that  such  witnesses  should  be  in  court.  Reg.  v. 
Cassidy,  1  Fost.  &  F.  79.  The  above  paragraph  should  be  read 
in  connection  with  the  case  of  Wellar  v.  People,  30  Mich.  23, 
where  it  was  held  reversible  error  in  the  trial  court  not  to  compel 
the  states'  attorney  to  call  an  eye  witness  to  the  homicide  whose 
name  was  indorsed  on  the  back  of  the  indictment.  Another  ex- 
ception is  found  as  to  rebutting  witnesses.  It  would  be  useless 
because  impossible  for  the  prosecution  to  forecast  the  nature  of 
the  direct  testimony  or  to  even  surmise  the  nature  and  scope  of 
the  rebutting  evidence.  Hence  witnesses  may  lie  called  on  rebut- 
tal whose  names  do  not  appear  on  the  back  of  the  indictment. 
Stat<  v.  Ruthven,  58  Iowa,  121. 

§  254.  Evidence  of  Time  and  Place. — The  precise  time  of 
the  commission  of  an  offense  need  not  be  stated  in  the  indictment, 
and  hence,  the  prosecution  is  not  called  upon  to  prove  the  precise 
time  under  the  familiar  rule,  that  it  is  only  required  to  produce 
such  evidence  as  is  necessary  to  support  the  indictment.  This 
statement,  however,  must  he  taken  with  this  additional  qualifica- 
tion  that  evidence   must   he   produced    tending  to  show    that  the 


408  LAW    OF    EVIDENCE    IN    CRIMINAL    CASES. 

offense  was  committed  before  the  finding  of  the  indictment,  and 
before  the  statute  of  limitations  was  allowed  to  operate.  In 
other  words,  this  will  be  sufficient  showing,  unless  time  is  an  in- 
dispensable ingredient  of  the  offense.  United  States  v.  Winslow, 
3  Sawy.  337;  Roberts  v.  State,  19  Ala.  526;  Irvin  v.  State,  13  Mo. 
306;  People  v.  Lafumte,  G  Cal.  202;State  v.  Hanson,  39  Me.  337; 
v.  Beaton,  79  Me.  314;  Lucas  v.  State,  27  Tex.  App.  322;. 
Chandler  v.  State,  25  Fla.  728;  Arcia  v.  State,  28  Tex.  App. 
19S;  Archb.  Crim.  Pr.  &  PI.  p.  275;  Whart.  Crim.  L.  §  2G1. 

The  term  employed  in  designating  time,  is  "on  or  about,"  and 
tin*  is  deemed  a  sufficient  particularization;  at  least  it  is  not  so 
indefinite  as  to  vitiate  the  indictment.  State  v.  Harp,  31  Kan. 
49S;  State  v.  Barnett,  3  Kan.  250;  State  v.  Tuller,  34  Conn.  294; 
People  v.  Littlefield,  5  Cal.  355;  People  v.  Kelly,  6  Cal.  210; 
F'irr,  II  v.  State,  45  Ind.  371;  Hampton  v.  State,  S  Ind.  336;  State 
v.  Elliot,  34  Tex.  14S;  CoJzely  v.  State,  4  Iowa,  479;  fiawson  v. 
State,  19  Conn.  295. 

The  only  object  of  alleging  time,  unless  it  enters  into  the  nature 
of  the  offense,  is  to  show  that  the  prosecution  is  not  barred  by  the 
statute  of  limitations,  and  that  the  offense  was  committed  within 
the  political  subdivision  of  the  state  over  which  the  court  has 
criminal  jurisdiction.  These  principles  are  elementary  and  stat- 
utory, and  need  no  citation  of  authorities.  State  v.  Adams,  20 
Or.  525. 

Modern  criminal  law  has  utterly  abandoned  the  old  theories 
'ling  evidence  of  the  time  and  place  at  which  an  offense  was 
committed.  The  obvious  hardship  of  requiring  the  prosecution 
to  prove  with  absolute  accuracy,  the  hour  and  minute  at  which  an 
offense  was  done,  doubtless  contributed  to  this  reform.  Evidence 
is  conclusive  that  a  hideous  crime  has  been  committed.  Evidence 
is  equally  conclusive  as  to  the  perpetrators  of  this  dastardly  act. 
The  instrumentalities  by  which  it  was  accomplished  are  also 
shown.  Premeditation  and  fiendish  malice  are  established — every 
ssory  that  can  deprive  the  act  of  palliation  or  excuse  is  shown 
to  exist;  and  yet  the  inability  of  the  commonwealth  to  show  the 
exact  time  of  the  occurrence,  must  operate  to  free  the  guilty  par- 
ties. This  standing  reproach  upon  the  administration  of  justice 
happily  no  longer  exists;  and  the  precise  time  at  which  the'erime 
was  committed  need  not  be  stated  in  the  indictment;  but  it  may 
be  alleged  to  have  been  committed  at  any  time  before  the  finding, 


EVIDENCE    AFFORDED    BY    THE    INDICTMENT.  409' 

except  where  the  time  is  a  material  ingredient  in  the  charge.  !N"» 
Y.  Code  Crim.  Proc.  §  2S0. 

So  long  as  the  facts  and  incidents  precluded  all  doubts  respect- 
ing the  identity  of  the  transaction,  and  so  long  as  it  was  manifest 
that  the  act  was  recent  enough  to  be  subject  to  prosecution,  and 
that  a  preliminary  examination  in  regard  to  it  had  been  had, 
time  is  not  an  ingredient  of  the  offense  in  any  such  sense  as  to 
make  it  necessary  to  charge  it  according  to  the  truth.  The  infor- 
mation or  indictment  may  state  one  time  and  the  proof  show  a 
different  one  without  involving  an  objectionable  variance.  Tur- 
ner v.  People,  33  Mich.  3TS. 

It  is  a  rule  that  time  and  place,  when  and  where  the  crime  was 
committed,  must  be  stated  with  certainty  in  the  indictment,  but 
it  is  not  necessary  to  prove  them  on  the  trial  as  stated,  unless  they 
are  necessary  ingredients  in  the  offense.  People  v.  Stocking, 
32  How.  Pr.  48. 

Place  is  immaterial,  unless  where  it  is  matter  of  local  descrip- 
tion, such  as  the  parish,  etc.,  where  the  house  or  building  is  de- 
scribed to  be  in  an  indictment  for  burglary,  or  for  breaking  and 
entering  a  house,  shop,  warehouse,  or  a  building  within  the  curti- 
lege,  etc.,  in  which  cases  the  local  description  must  be  proved  as 
laid.  Upon  an  indictment  for  treason  or  conspiracy,  if  you  prove 
one  good  overt  act  in  the  county  where  the  venue  is  laid,  you  may 
prove  the  others  to  have  taken  place  in  any  other  part  of  the 
country.  And  upon  an  indictment  against  an  accessory  before  or 
after  the  fact,  he  may  be  indicted,  in  any  place  and  before  any 
court  where  his  principal  may  be  tried,  no  matter  where  the 
offense  of  the  accessory  was  committed.  1  Archb.  Crim.  Pr.  & 
PI.  p.  119. 

§  255.  Quashing  Indictment  Founded  on  Illegal  Evi- 
dence Given  before  the  Grand  Jury. — An  indictment  will 
be  quashed,  if  it  plainly  appears  to  the  court  to  have  been  found 
upon  wholly  incompetent  or  insufficient  evidence;  but  if  the  jury 
acted  upon  legal  testimony  reaching  the  whole  case,  the  court  will 
not  weigh  its  sufficiency. 

The  jealousy  with  which  the  early  law  guarded  the  secrets  of 
the  grand  jury  room,  has  largely  disappeared.  The  sacramental 
character  of  that  august  body  is  very  imperfectly  recognized  at 
the  present  day.  The  theory  that  the  proceedings  Ik  ■lore  this 
body  are  beyond  the  scrutiny  or  condemnation  of  court  or  coun- 


•ilU  LAW    OF    EVIDENCE   IN   CKIMINAL    CASES. 

Bel,  is  a  foolish  pretense  that  is  very  generally  abandoned.  Mal- 
ice, corruption  and  ignorance  frequently  combine  to  impress  upon 
the  proceedings  of  this  body,  the  tyrannical  and  oppressive  func- 
tions of  the  Star  Chamber  and  the  Council  of  Ten.  And  to  say 
or  eveD  intimate  that  where  corrupt  practices  exist,  there  is  no 
method  open  for  their  proper  disclosure  is  simply  to  insist  that 
our  criminal  law  is  crippled  with  a  hideous  deformity. 

In  Burdick  v.  Hunt,  43  Ind.  381,  it  is  said  there  is  no  suffi- 
cient reason  why  the  prosecuting  attorney  may  not  be  called  upon 
in  a  court  of  justice  to  disclose  any  evidence  given  or  proceedings 
had  before  a  grand  jury.  And  the  following  authorities  are  to 
the  effect  that  generally  the  evidence  of  grand  jurors  is  compe- 
tent whenever  it  is  necessary  to  ascertain  who  was  the  prosecutor 
(Sikes  v.  Dunbar,  2  Wheat.  Sel.  K  P.  1091;  Huidekoper  v.  Cot- 
ton,  3  Watts,  56)  <>r  what  was  the  issue  and  what  the  testimony  of 
the  witnesses  before  a  grand  jury  in  a  given  case.  Thomas  v. 
Com.  2  Rob.  (Ya.)  795;  State  v.  Offutt,  4  Blackl  355;  State  v. 
Fassett,  L6  Conn.  457;  Com.  v.  Hill,  11  Cush.  137;  State  v. 
Broughton,  29  K  C.  96,  45  Am.  Dec.  507;  Way  v.  Butter  worth, 
J i iti  Ma>s.  75;  Burdick  v.  Hunt,  supra. 

The  rule  which  may  be  adduced  from  the  authorities,  and 
which  seems  most  consistent  with  the  policy  of  the  law,  is  that 
whenever  it  becomes  essential  to  ascertain  what  has  transpired 
before  a  grand  jury  it  may  be  shown,  no  matter  by  whom;  and 
the  only  limitation  is  that  it  may  not  be  shown  how  the  individ- 
ual jurors  voted  or  what  they  said  during  their  investigations 
{People  v.  Shattuck,  6  Abb.  K  C.  34;  Com.  v.  Mead,  12~  Gray, 
1»'>7.  71  Am.  Dec.  741)  because  this  cannot  serve  any  of  the  pur- 
poses  of  justice. 

In  Si, if,  v.  Froiseth,  16  Minn.  29S,  it  was  conceded  by  the 
attorney  general,  and  the  court  concurred,  that  where  the  grand 
jury  required  an  accused  person  to  be  brought  before  them  and 
testify  touching  the  accusation  the  indictment  should  be  set  aside, 
although  in  that  case  the  indictment  was  not  found  solely  upon 
the  testimony  of  theaccused.  InPeople  v.Briggs,  60  How.  Pr.17, 
the  court,  Osborn,  -/.,  held  that  an  indictment  should  be  quashed 
where  the  defendant's  wife  was  called  as  a  witness  against  him  by 
the  grand  jury,  for  the  reason  that  this  was  a  substantial  error, 
and  it  was  doubtful  whether  the  grand  jury  wouldhave  found  an 
indictment  without  the  wife's  testimony.  United  States  v.  Far- 
rington,  5  Fed.  Rep.  343,  2  Crim.  L.  Mag.  525. 


EVIDENCE    AFFORDED    BY    THE    INDICTMENT.  411 

The  proceedings  of  grand  juries  cannot  ordinarily  be  disclosed, 
but  this  rule  is  not  to  be  carried  to  the  extent  of  obstructing  jus- 
tice or  of  creating  wrong  and  hardship.  A  court  may  inquire 
into  the  evidence  upon  which  a  grand  jury  found  an  indictment, 
and  if  such  evidence  is  plainly  illegal  and  incompetent  should 
•quash  the  indictment.  People  v.  Hestenblatt,  1  Abb.  Pr.  268; 
United  States  v.  Farrin<j1nn.  *>/;>/■</.  'But  see  contra,  State  v. 
Fbwlt  r,  52  Iowa,  103,  2  Crim.  L.  Mag.  45. 

As  the  grand  jury  is  an  informing  and  accused  body,  which 
makes  its  investigations  and  holds  its  deliberations  in  secret,  and 
is  irresponsible  for  its  official  action  upon  matters  of  fact,  except 
before  the  tribunal  of  public  opinion,  it  is  very  important  that  its 
powers  duties  and  methods  of  procedure  should  be  well  under- 
stood, and  be  strictly  confined  within  the  conservative  and  salu- 
tary limits  imposed  by  law,  which  experience  has  shown  to  be 
necessary  to  subserve  the  public  good,  and  to  accomplish  a  just 
and  impartial  administration  of  the  criminal  law. 

Mr.  Justice  Field,  in  an  able  and  well  considered  charge  of  a 
grand  jury  in  California  (5  Am.  L.  J.  259),  very  clearly  defined 
his  views  as  to  the  powers  and  duties  of  grand  juries  in  the  Fed- 
eral courts.  He  said,  in  substance,  that  their  investigations  are 
limited  to  such  offenses  as  are  called  to  their  attention  by  the 
court,  or  submitted  to  their  consideration  by  the  district  attorney; 
or  such  as  may  come  to  their  knowledge  in  the  course  of  their 
investigations  of  matter  brought  before  them,  or  from  their  own 
observations,  or  such  as  may  be  disclosed  by  members  of  the  body. 
With  the  above  exceptions  he  was  opinion  that  all  criminal  prose- 
cutions should  be  commenced  by  preliminary  examinations  before 
a  magistrate,  where  a  person  accused  of  crime  may  meet  his 
accuser  face  to  face,  and  have  an  opportunity  for  defense,  as  this 
method  of  procedure  affords  the  citizen  the  greatest  security 
against  false  accusations  from  any  quarter.  He  also,  in  strong 
terms,  directed  the  grand  jurors  not  to  allow  private  prosecutors 
to  intrude  themselves  into  the  grand  jury  room  and  present  accu- 
sations. On  this  subject  he  dwelt  at  some  length  and  referred  to 
high  authority,  urging  the  importance  of  securing  grand  juries 
against  outside  influences  and  improper  interferences,  which,  if 
allowed,  "would  introduce  a  Hood  of  evils,  disastrous  to  the  purity 
of  the  administration  of  criminal  justice,  and  subversive  of  all 
public  confidence  in  the  action  of  these  bodies."     In  this  connec- 


412  LAW    OF    EVIDENCE    IN    CRIMINAL    CASES. 

tion  he  quoted  the  Act  of  Congress  entitled  "An  Act  to  Prevent 
and  Punish  the  Obstruction  of  the  Administration  of  Justice  in 
the  Courts  of  the  United  States."     Rev.  Stat.  §§  5404,  5405. 

Investigations  before  grand  juries  must  be  made  in  accordance 
with  the  well  established  rules  of  evidence,  and  they  must  have- 
the  l><-t  legal  proof  of  which  the  case  admits.  In  this  respect 
they  are  judicial  tribunals.  The  prosecuting  officer  is  presumed 
to  be  familiar  with  the  rules  of  evidence,  and  it  is  his  duty  to  take 
care  that  no  evidence  is  received  by  the  grand  jury  which  would 
not  be  admissible  in  a  court  upon  the  trial  of  a  cause.  1  Whart 
Crim.  L.  §  493. 

As  to  how  far  grand  jurors  may  be  allowed  or  compelled  to  tes- 
til'v  as  to  proceedings  before  their  body,  is  a  question  upon  which 
there  is  son  a-  diversity  of  decisions  in  the  courts.  By  the  policy 
of  the  law  grand  juries  act  in  secret,  and,  with  the  view  of  sus- 
taining that  policy,  it  is  prescribed  that  a  grand  juror  shall,  among 
other  things,  swear  that  "the  state's  counsel,  your  fellows,  and 
your  own,  you  shall  keep  secret."  The  principal  ground  of  that 
policy  is  to  inspire  the  jurors  with  a  confidence  of  security  in  the- 
discharge  of  their  responsible -duties;  and  secrecy  as  to  the  actions 
and  the  opinions  of  jurors  upon  matters  before  them  must  ever 
remain  inviolable. 

It  follows  from  the  foregoing  review  that  an  indictment  should 
be  quashed  when  it  appears  by  affidavit  that  it  was  found  by  the- 
grand  jury  without  adequate  evidence  to  sustain  it.  People  v. 
RestenhlaU,  1  Abb.  Pr.  268;  People  v.  Byler,  2  Park.  Crim. 
Rep.  570.  If  any  illegal  evidence  has  been  introduced  before 
the  grand  jury  which  bears  in  the  smallest  degree  upon  the 
final  result  of  the  deliberations,  it  cannot  properly  be  disre- 
garded, and  the  indictment  should  be  set  aside.  Worrall  r.  Par- 
melee,  1  K  Y.  519,  49  Am.  Dec.  350;  Anderson  v.  Rome,  W. 
&  0.  R.  Go.  54  X.  Y.  334;  Baird  v.  Gtilett,  47  H".  Y.  1S6.  Since- 
the  decision  of  the  case  of  the  People  v.  Briggs,  60  How.  Pr.  17, 
deciding  the  incompetency  of  the  wife  as  a  voluntary  witness- 
against  the  husband  (per  Judge  Osborn),  the  same  question  has 
been  decided  the  same  way  in  the  case  of  Byrd  v.  State,  57  Miss. 
243,  34  Am.  Kep.  440,  reported  since  Judge  Osborn's  decision, 
ilso  People  v.  Crandon,  17  Hun,  490,  which  holds  directly 
that  the  wife  is  not  a  competent  witness  in  a  criminal  action 
against  her  husband.     Any  defect  which,  in  any  stage  of  a  crim- 


EVIDENCE    AFFOKDED    BY    THE    INDICTMENT.  413 

inal  proceeding  will  vitiate  the  indictment,  may  be  taken  advan- 
tage of  by  plea  in  abatement.  2  Hale,  P.  C.  2-'36.  Any  defect  or 
irregularity  appearing  upon  the  face  of  the  indictment  or  upon 
some  matter  of  fact  extrinsic  of  the  record,  may  be  cured  by  plea 
in  abatement  to  quash.     1  Bishop,  Crim.  Proc.  §  416. 

Upon  a  motion  to  quash  an  indictment,  affidavits  cannot  be  read 
to  contradict  or  explain  the  allegations  in  the  indictment  without 
the  consent  of  the  district  attorney,  and  common  law  proof  is 
required  to  sustain  or  avoid  the  allegations  in  an  indictment, 
unless  by  consent  of  the  district  attorney  other  proof  is  accepted. 
People  v.  Clews,  57  How.  Pr.  215. 

In  1  Wharton's  American  Criminal  Law,  §  520,  it  is  said:  "It 
is  error  to  quote  on  matters  not  apparent  in  the  indictment,  or 
■caption,  extrinsic  matter  being  proper  for  the  defense  only  on 
trial  by  jury."  In  a  note  to  this  section  he  says:  "By  consent, 
however,  extraneous  matter  may  be  brought  in."  Bishop,  in  1 
Criminal  Proceedings,  §  763,  admits  this  to  be  the  general  rule, 
but  says:  "The  better  doctrine  is,  that  the  court  in  its  discretion 
may  go  outside  of  the  indictment  and  record  and  try  the  whole 
•question  on  affidavits." 

This  is  the  substance  of  his  text  for  what  he  styles  the  "better 
doctrine." 

He  cites  on  supporting  this  "better  doctrine,"  State  v.  Batchel- 
■or,  15  Mo.  207;  State  v.  Wall,  15  Mo.  208;  State  v.  Cain,  8  N.  C. 
552;  Reg.  v.  Beam,  4  Best  &  S.  94,  9  Cox,  C.  C.  433,  10  Jur.  K 
S.  724;  United  States  v.  STiepard,  1  Abb.  U.  S.  431. 

"I  have  examined  these  cases  carefully  and  they  do  not  author- 
ize, in  my  opinion,  or  sustain  the  views  of  Mr.  Bishop.  IsTor  are 
they  authority  that  affidavits  can  be  received  when  objected  to  by 
the  district  attorney."     Grosvenor,  J.,  in  People  v.  Clews,  supra. 

There  are  various  valid  reasons  which,  when  properly  urged, 
will  affect  the  quashing  of  an  indictment.  Thus  uncertainty  is 
frequently  alleged  as  a  reason  {State  v.  Robinson,  29  1ST.  n.  275- 
Mwphy  v.  State,  106  Ind.  9G;  State  v.  Roach,  3  X.  C.  352)  or 
want  of  jurisdiction.  State  v.  Benthall,  82  N.  C.  6G4.  And  du- 
plicity constitutes  a  sufficient  cause.    .  Knopf  v.  State,  84  Ind.  316. 

Under  the  New  Tork  Code  of  Criminal  Procedure,  §  32:),  this 
last  objection  is  made  available  by  demurrer.  The  rules  relating 
to  this  subject  of  quashing  an  indictment  filiate  more  particularly 
with  practice  methods  and  will  receive  no  further  notice  in  this 
connection. 


414  LAW    OF    EVIDENCE    IN    CRIMINAL    CASES. 

§  256.  When  Evidence  Introduced  to  Sustain  Indictment 
may  be  Stricken  out. — Where  as  it  actually  happens  in  many 
cases  counsel  offer  certain  irrelevant  testimony  under  a  promise 
to  subsequently  connect  it  with  some  vital  fact  in  issue,  and  the 
court  with  this  promise  in  view  admits  the  evidence,  it  may  be 
stricken  out  on  motion,  if  the  event  discloses  a  failure  to  so  con- 
inn  it.      Page  v.  Parker,  43  N.  H.  363,  80  Am.  Dec.  172. 

This  rule,  it  must  be  borne  in  mind,  is  of  doubtful  propriety  in 
criminal  cases:  "It  must  be  apparent  that  such  testimony,  having 
(nice  gone  to  the  jury,  its  impression  would  necessarily,  to  some 
extent,  remain  in  their  minds,  though  they  were  ordered  to  dis- 
card it;  and  in  a  ease  of  circumstantial  evidence,  it  is  next  to 
impossible  to  say  how  far  that  impression  exercised  its  influence 
in  supplying  any  defect  which  might  have  arisen,  or  in  solving 
any  doubt  in  their  minds  on  the  general  state  of  the  evidence.  A 
prosecuting  officer  in  behalf  of  the  state,  in  his  zeal  for  a  convic- 
tion, should  never  overlook  the  fact  that  the  interests  in  society 
and  the  vindication  of  the  law  require  at  his  hands  as  much  the 
protection  of  the  innocent  as  the  conviction  of  the  guilty.  Evi- 
dence of  this  character,  in  cases  involving  life,  should  never  be 
proposed  by  him,  unless  he  is  morally  certain  that  he  can  make 
good  his  promise  of  connecting  the  defendant  with  the  matter; 
there  should  he  no  room  for  doubt,  where,  he  could  have  ascer- 
tained in  advance  the  existence  or  non-existence  of  defendant's 
connection  with  the  proposed  evidence."  Marshall  v.  State,  5 
Tex.  App.  273. 

A  contrary  doctrine  is  held  in  regard  to  civil  cases.  Joslin  v. 
Grand  Rapids  Ice  &  C.  Co.  53  Mich.  323. 

As  sustaining  the  doctrine  of  Marshall'  v.  State,  supra,  see 
State  v.  Daubert,  42  Mo.  242;  Lafayette,  B.  &  M.  R.  Co.  v.  Wins- 
low,  66  111.  219;  Blizzard  v.  Ablegate,  77  Ind.  516;  Hopt  v. 
People,  114  U.  S.  488,  29  L.  ed.  1S3';  Specht  v.  Howard,  83  TJ. 
S.  1*;  Wall.  564,  21  L.  ed.  348;  Davis  v.  Peeeler,  65  Mo.  189; 
Goodnow  v.  Hill,  L25  Mass.  589;  Dillin  v.  People,  8  Mich.  369; 
Abbott,  Trial  Brief,  52,  citing  Mechelke  v.  Bramer,  59  Wis.  57; 
Piper  v.  White,  56  Pa.  90;  Hall  v.  Patterson,  51  Pa.  289;  Bil- 
berry v.  Molley,  21  Ala.  277;  Van  Buren  v.  Wells,  19  Wend. 
203;  Abney  v.  Eingsland,  L0  Ala.  Mr.."),  44  Am.  Dec.  491;  Games 
v.  Piatt,  15  Abb.  Pr.  A'.  S.  338,  4  Jones  Ar  S.  361,  affirmed  in 
59  N.  Y.  405. 


EVIDENCE    AFFORDED    BY    THE    INDICTMENT.  415 

It  frequently  occurs  in  the  trial  of  a  cause  civil  or  criminal, 
that  a  cunning  and  discriminating  witness  will  attempt  to  foist 
upon  the  record  an  answer  that  is  in  no  sense  responsive  to  the 
question  asked.  Under  such  circumstances  either  party  may  ob- 
ject to  the  relevancy  of  the  evidence  and  ask  that  it  be  stricken 
out.  Such  a  request  should  always  be  granted.  Greenman  v. 
O'Connor,  25  Mich.  30;  Lansing  v.  Coley,  13  Abb.  Pr.  272; 
Kingsbury  v.  Jfoses,  45  N.  H.  222. 

a.  Examination  of  the  Principle  Affecting  this  Right  to 
Exclude. — We  have  elsewhere  discussed  the  regulations  in  vogue 
regarding  "offers  to  prove."  It  is  perhaps  unnecessary  to  add 
that  where  there  is  a  failure  to  connect  the  testimony  elicited 
with  any  of  the  issuable  propositions  of  the  case  the  testimony  that 
has  been  received,  upon  the  theory  that  it  is  relevant,  should  be 
stricken  out  when  it  appears  that  it  sustains  no  legitimate  relation 
to  the  proof  required.  Upon  this  subject  there  is  suggestive 
comment  in  several  California  cases. 

At  a  recent  trial  in  that  state  the  defendant  moved  to  strike 
out  certain  evidence.  The  court  denied  the  motion  upon  the 
statement  of  the  district  attorney  that  he  would  show  its  rele- 
vancy by  other  evidence,  but  gave  the  defendant  leave  to  renew 
his  motion  at  a  subsequent  stage  of  the  trial.  The  district  attor- 
ney failed  to  introduce  the  other  evidence,  and  the  defendant 
renewed  his  motion,  which  was  granted.  It  was  argued  that  the 
court  ought  to  have  granted  the  motion  in  the  first  instance,  and 
that  when  the  evidence  was  finally  stricken  out,  a  caution  con- 
cerning it  should  have  been  given  to  the  jury.  But  it  is  usual 
and  quite  proper  for  a  court  to  accept  the  statement  of  a  reputa- 
ble counsel,  and  upon  the  faith  of  such  statement  to  temporarily 
refuse  to  strikeout  evidence  that  has  been  introduced,  or  to  admit 
evidence  offered.  And  if  the  defendant  had  desired  any  caution 
to  the  jury;  he  should  have  asked  for  it.  The  failure  of  a  court 
to  charge  on  any  point  usually  proceeds  from  inadvertence,  and 
the  law  casts  upon  the  parties  the  duty  of  calling  the  judge'.-  at- 
tention to  the  matter  by  a  formal  request  for  an  inst ruction  in 
relation  to  it.  People  v.  Haun,  44  Cal.  96;  People  v.  P<>,/ u nolo, 
44  Cal.  541;  People  v.  Ah  Wee,  48  Cal.  237;  People  v.  Collin*, 
48  Cal.  277;  Chamberlain  v.  Vance,  51  Cal.  84;  Williams  v. 
Hartford  In*.  Co.  54  Cal.  410;  People  v.  McLean,  84  Cal.  480. 

b.  Views  of  Justice  McGowan    and   Others.  —  In  further 


416  LAW    OF    EVIDENCE    IN    CRIMINAL    CASES. 

vindication  of  the  position  taken  of  the  text,  I  will  refer  to  the 
case  of  State  v.  James,  34  S.  C.  49,  where  the  question  involved 
was  a  subject  of  an  extended  review.  As  usual  in  cases  of  this 
character  the  counsel  for  the  defense  urged  that  the  testimony 
complained  of  had  been  heard  by  the  jury,  that  the  evil  effects 
inherent  in  erroneous  evidence  must  have  left  a  prejudicial  im- 
pr<  sssion  which  the  mere  instruction  to  disregard  could  not  remove. 
Mr.  Justice  McGowan  in  refusing  to  grant  a  new  trial  on  the 
ground  of  the  admission  of  erroneous  evidence,  employs  the  fol- 
lowing vigorous  language :  "We  know  that  the  law  is  very  tender 
■of  human  life,  but  considering  the  character  of  the  testimony  in 
connection  with  the  whole  case,  we  cannot  hold  that  the  bare  cir- 
cumstance of  the  evidence  having  been  heard  by  the  jury,  should 
vitiate  the  whole  proceeding.  The  jury  was  instructed  not  to 
consider  it,  and  we  must  assume  that  they  were  what  the  law 
directs,  sensible,  intelligent  men,  entirely  without  bias.  It  is  true, 
there  are  extreme  cases  in  some  of  our  sister  states,  in  which  the 
court-  have  gone  very  far  in  the  opposite  direction;  but  there  is 
11.  >  such  case  in  this  state.  As  we  think,  the  proper  rule  in  such 
cases  is  laid  down  in  2  Graham  &  Waterman,  New  Trials  (2d  ed.) 
page  633,  where,  in  commenting  upon  the  case  of  Craddock  v. 
Craddock,  8  Litt.  (Ky.)  78,  the  learned  author  says:  'But  so 
rigid  a  discipline  would  be  injudicious.  A  more  moderate  and 
less  exacting  course  has  been  found  to  answer  every  purpose.  In 
the  progress  of  a  warmly  contested  suit,  exceptionable  testimony 
will  occasionally  slip  in,  despite  of  the  greatest  care  of  the  court 
and  counsel.  If,  therefore,  the  bare  circumstance  that  such  evi- 
dence had  gone  to  the  jury,  vitiated  all  the  proceedings,  scarcely 
a  verdict  in  any  case  of  importance  would  stand.  So  that  it  is,  on 
the  whole,  the  part  of  the  wisdom  for  courts,  to  regard  not  so 
much  the  fact  that  improper  evidence  has  been  admitted,  as  the 
influence  it  may  have  had  on  the  result.  We  may,  then,  lay  it 
down  as  a  settled  rule,  that  if  the  verdict  is  undeniably  correct,  a 
new  trial  will  not  be  granted,  even  in  case  of  the  admission  of 
improper  evidence.'  "  Notwithstanding  the  general  propriety  of 
this  view  it  must  be  borne  in  mind  that  striking  out  testimony 
that  has  been  improperly  allowed  in  a  criminal  case,  and  caution- 
ing the  jury  not  to  be  influenced  by  it,  does  not  necessarily  obvi- 
ate its  effects.     People  v.  Wolcott,  51  Mich.  612. 


EVIDENCE    AFFORDED    BY    THE    INDICTMENT.  417 

Though  the  court  know  not,  as  seldom  can  it  know,  that  the 
needful  connecting  proof  will  be  forthcoming,  may  it  not  rest  for 
awhile  on  the  assertion  of  reputable  counsel  of  his  expectation 
that  he  can  produce  it  ?  That  a  court  may  base  its  action  upon 
the  avowals  aiid  declared  purposes  of  counsel  is  shown  by  Dunn 
v.  JPeopl ,  29  X.  T.  523.  It  seems  to  us  that  it  would  too  much 
hamper  the  trial  courts  in  their  proceedings,  if  they  are  much 
restricted  in  the  exercise  of  a  discretion  rested  in  them,  in  such 
case,  for  the  convenience  and  dispatch  of  business,  and  often  for 
&  proper  understanding  and  appreciation  of  the  testimony.  As 
•was  said  by  Kelson,  Ch.  J.,  in  a  kindred  matter,  in  Morris  v. 
Wadsworth,  17  Wend.  103,  the  question  must  always  depend  so 
much  upon  the  exercise  of  a  sound  discretion  that  it  would  be 
unsafe  to  lay  down  any  general  rule  for  the  disobedience  of  which 
an  exception  should  be  allowed.  See  also  Fly  nn  v.  Murphy, 
2  E.  D.  Smith,  37S;  Philadelphia  &  T.  R.  Co.  v.  Stimpson,  39 
U.  S.  11  Pet.  4G3,  10  L.  ed.  513,  per  Story,  J.  Truly  it  is  at 
limes  a  delicate  discretion,  to  be  used  with  sound  judgment  and 
great  care  for  the  case  of  the  prisoner,  lest  he  be  jeoparded  with 
the  jury  by  testimony  that  may  never  properly  have  a  place  in 
their  consideration.  And  it  may  be  well  often  to  doubt  whether 
the  zeal  of  counsel  does  not  lead  to  an  expectation  of  forthcoming 
connecting  testimony,  when  it  does  not  exist. 

Tilghman,  Ch.  J.,  in  Stewart  v.  Huntingdon  Bank,  11  Serg.  & 
R.  267,  said:  "It  has  grown  into  a  habit,  within  these  few  years 
for  counsel  to  propose  a  chain  of  evidence,  the  first  link  of  which 
depended  on  those  which  follow,  and  would  not  be  competent 
without  them."  He  remarks  the  incident  dangers,  and  adds : 
"The  court  should,  therefore,  keep  a  wary  eye  on  proceedings  of 
this  kind,  and  take  care  to  instruct  the  jury  to  pay  no  regard  to 
the  evidence  which  they  have  heard  whenever  the  condition  on 
which  it  was  introduced  is  not  complied  with."  At  a  much  more 
recent  date  it  was  decided,  that  if  improper  evidence  is  given, 
tending  to  inflame  the  damages,  and  it  is  not  struck  out  at  or  be- 
fore the  close  of  the  testimony,  so  that  counsel  shall  not  be  allowed 
to  refer  to  or  dwell  upon  it  in  their  address  to  the  jury,  it  is  alto. 
gether  too  late  to  cure  the  mistake  by  directing  the  jury  to  disre- 
gard it  in  the  charge.  Pennsylvania  R.  Co.  v.  Butler,  57  Pa. 
335.  Whenever  the  incompetent  testimony  received  is  of  such  a. 
•character  as  to  inevitably  tend  to  prejudice  the  minds  of  the 
27 


418  LAW    OF   EVIDENCE    IN   CRIMINAL   CASES. 

jurors,  the  error  is  not  cured  by  the  court  telling  them,  after  the- 
argument  lias  closed,  not  to  consider  it.  Huntingdon  &  B.  T. 
.!/.  R.  &  C.  Co.  v.  Decker,  82  Pa.  119.  The  rule  is  settled  that,  in 
civil  cases,  if  incompetent  testimony  is  not  withdrawn  before  the' 
argument,  and  so  that  it  be  reasonably  certain  that  its  poison  has 
not  infected  the  whole  case,  the  error  in  the  receiving  of  it  is  not 
cured.  What  then  ought  to  be  the  rule  when  life  or  liberty  is  at 
stake? 

If  it  has  become  a  custom  in  capital  cases  to  receive  incompe- 
tent evidence,  on  the  faith  that  it  will  become  competent  before 
the  trial  closes,  would  it  not  be  well  to  abandon  it?  When  such 
evidence  has  been  made  competent  by  subsequent  proofs,  there 
will  not  be  a  reversal  because  it  was  prematurely  received.  If 
withdrawn  at  a  time  and  in  a  way  that  makes  it  certain  the  accused 
was  not  prejudiced,  the  error  would  be  cured.  But  if  its  tendency- 
was  to  affect  the  credibility  of  a  witness,  or  to  establish  the  pris- 
oner's guilt,  who  can  say  it  was  effaced  from  the  juror's  mind. 
Much  pains  is  taken  to  get  an  unbiased  and  pure  mind,  as  white 
paper,  on  which  to  write  the  legal  evidence,  and  it  should  not  be 
purposely  blotted  with  irrelevant  matter.  Once  fouled,  it  is  hard 
to  clean. 

New  York  holds  to  the  same  ruling.  It  has  long  been  well 
settled  in  the  courts  of  that  state  that  an  error  in  the  reception  of 
illegal  evidence  is  not  cured  bv  a  direction  to  disregard  the  evi- 
dence.  Erben  v.  Lorillard,  19  X.  Y.  302;  Furst  v.  Second  Ave.. 
R.  Co.  72  X.  Y.  547;  Coleman  v.  People,  58  X.  Y.  501;  Ander- 
son v.  Rome,  W.  &  0.  R.  Co.  54  X.  Y.  341;  Stokes  v.  PeopU,  53 
X.  Y.  184,  13  Am.  Rep.  492;  Worrall  v.  Parmelee,  1  X.  Y.  519,. 
49  Am.  Dec.  350;  Newman  v.  Goddard,  '■>>  Hun,  ~rl:  Irvine  v. 
Cook,  15  Johns.  239;  Penfield  v.  Carpender,  15  Johns.  350; 
Vandevoort  v.  Gould,  36  K  Y.  639;  People  v.  Gonzcdes,  35  X. 
Y.  49. 

c.  Prejudice  must  have  Resulted  or  Incompetent  Evi- 
dence will  Stand. — When  a  fact  is  conclusively  proved,  by  com- 
petent  evidence,  so  that  the  court  can  see  that  no  prejudice  or 
injury  could  possibly  have  resulted  from  the  admission  of  incom- 
i  evidence  to  prove  the  same  fact  in  another  stage  of  the 
case,  its  admission  will  not  be  cause  for  interfering  with  the 
result,  but  the  rule  is  to  be  cautiously  applied,  especially  in  crim- 
inal cases.      Williams  v.  Fitch,  18  X.  Y.  546;  People  v.  White,  14- 


EVIDENCE   AFFORDED    BY    THE    INDICTMENT.  419 

Wend.  Ill;  Erlen  v.  Lorillard,  19  K  T.  299.  The  true  and  the 
only  rule  that  can  be  sustained  upon  principle  is,  that  the  intend- 
ment of  law  is,  that  an  error  in  the  admission  of  evidence  is  prej- 
udicial to  the  party  objecting,  and  will  be  ground  for  the  reversal 
of  the  judgment  unless  the  intendment  is  clearly  repelled  by  the 
record.  The  error  must  be  shown  conclusively  to  be  innocuous. 
Vandevoort  v.  Gould,  36  N.  Y.  639;  People  v.  Gonzales,  35  IS". 
Y.  49.  It  is  not  enough  that  the  court  sitting  in  review  of  the 
judgment  may  be  of  the  opinion  that  the  result  ought  to,  and 
probably  would,  have  been  the  same  if  the  objectionable  evidence 
had  been  excluded,  and  especially  ought  not  such  a  presumption 
avail  to  cure  an  error  upon  a  criminal  trial. 

The  rule  laid  down  in  Foote  v.  Beecher,  78  jST.  Y.  158,  is  as  fol- 
lows: "An  error  in  receiving  incompetent  evidence,  if  properly 
excepted  to,  can  only  be  disregarded  when  it  can  be  seen  that  it 
did  no  harm.  If  the  evidence  is  slight  or  irrelevant,  or  if,  with- 
out it,  the  fact  is  conclusively  established  by  other  evidence,  it 
may  be  disregarded,  because  it  could  not  have  injured  the  other 
party." 

A  just  application  of  the  law  will  not  allow  an  indictment  to 
stand  unless  warranted  by  the  evidence.  People  v.  Morrison,  1 
Park.  Crim.  Rep.  025;  Reynolds  v.  People,  41  How.  Pr.  179; 
People  v.  Bransby,  32  X.  Y.  525;  People  v.  Dohrvng,  59  N".  Y. 
374;  Walter  v.  People,  50  Barb.  144.  And  in  Alabama  the 
admission  of  illegal  or  irrelevant  evidence  against  the  objection  of 
a  defendant,  on  trial  for  a  criminal  offense,  is  a  reversible  error, 
unless  it  affirmatively  appears  that  no  injury  resulted  therefrom. 
Maxwell  v.  State,  89  Ala.  164;  Maries  v.  State,  87  Ala.  99; 
Vaughcm  v.  State,  83  Ala.  55;  Mitchell  v.  State,  60  Ala.  26. 

d.  When  Incompetent  Evidence  is  not  Deemed  Harmless. 
— When  incompetent  evidence  may  have  a  tendency  to  arouse 
the  prejudices  of  the  jury  it  cannot  be  deemed  harmless.  Ander- 
son  v.  Rome,  W.  &  0.  R.  Co.  54  K  Y.  334.  And  this  rule 
applies  in  both  civil  and  criminal  cases,  and  with  even  greater 
force  in  the  latter  than  in  the  former.  Baird  v.  Gillett,  47  N. 
Y.  186;  Worrcdl  v.  Parmelee,  1  N.  Y.  519,  49  Am.  Dec.  350; 
Starin  v.  People,  45  K  Y.  341;  Ross  v.  Ackerman,  40  K  Y.  210; 
Osgood  v.  Manhattan  Co.  3  Cow.  612,  15  Am.  Dec.  304;  Mar- 
quand  v.  WeUb,  16  Johns.  89;  Rosenweig  v.  People,  63  Barb.  635; 
Peopjle  v.  Haynes,  38  How.  Pr.  309;  People  v.  Pierpont,  I  Wheel. 


420  LAW    OF   EVIDENCE   IN   CRIMINAL   CASES. 

Crim.  Cas.  139;  People  v.  Ilopson,  1  Denio,  574;  Cary  v.  Hotail- 
ing,  1  Hill,  316,  37  Am.  Dec.  323;  Hall  v.  People,  6  Park.  Crim. 
Kep.  071;  1  Greenl.  Ev.  §§  51,  52,  448. 

But  when  such  incompetent  evidence  is  offered,  the  objection 
should  be  fully  stated.  After  this  has  been  done  and  the  objec- 
tion argued,  overruled,  and  the  evidence  received;  the  attention 
of  the  court  again  called  to  its  objectionable  character  by  a  motion 
to  strike  it  out,  and  exception  to  the  adverse  rulings  duly  taken, 
counsel  may  well  desist  from  renewing  fruitless  objections.  State 
v.  Graves,  17  Colo. . 

e.  When  Motion  to  Strike  out  must  be  Made. — It  is  not  too 
late  after  argument  is  closed,  for  the  party  who  has  given  improper 
evidence,  to  call  upon  the  judge  to  charge  the  jury,  that  it  was 
illegally  admitted  and  should  be  disregarded  by  them.  Abbott, 
Trial,  Brief,  §  716. 


CHAPTER   XXXV. 

BURDEN  OF  PROOF. 

i 

§  257.  Preliminary    View. 

258.  Burden  of  Proof  Pests  upon  the  Prosecution. 

259.  Never  Shifts  but  is  with  Prosecution  throughout. 

2G0.    Where  a  Fact  is  Peculiarly  within  the  Knowledge  of  a 
Party. 

261.  When  Accused  must  Establish  the  Defense  of  Insanity. 

262.  Proving  a  Negative. 

263.  A  Prima  Facie  Case  will  not  Rebut  the  Presumption  of 

Innocence. 

264.  Burden  of  Proof  in  Statutory  Crimes. 

265.  The  Rule  Deduced  from  the  Celebrated  Stokes  Case. 

266.  Views  of  Sir  James  Stephen. 

267.  Summary  of  the  Conclusion  Reached. 

§  257.  Preliminary  View. — It  is  an  elementary  principle  of 
criminal  jurisprudence,  a  principle  firmly  imbedded  in  the  or- 
ganic law  of  every  free  state  and  vindicated  by  statutory  guar- 
antee as  well  as  by  innumerable  judicial  decisions,  that  every 
criminal,  however  hideous  his  alleged  crime,  or  however  debauched 
and  fiendish  his  character,  may  require  that  the  elements  of  that 
crime  shall  be  clearly  and  indisputably  defined  by  law,  and  that 
his  commission  of  and  relationship  to  the  alleged  offense  shall  be 
established  by  legal  evidence  delivered  in  his  presence  and  before 
a  jury  of  his  peers.  Until  accorded  this  right,  he  may  safely 
Haunt  and  boast  his  immunity  from  punishment,  and  his  right  to 
invoke  the  protection  of  the  legal  presumption  of  innocence  which 
the  law  in  its  leniency  extends  to  every  person.  This  principle  is 
vindicated  in  countless  decisions  that  it  is  mere  pedantry  to  cite. 
Its  latest  exposition  perhaps  is  from  Chief  Judge  linger  of  the 
.New  York  court  of  appeals  in  People  v.  Plath,  100  N.  Y.  590. 
This  is  a  valuable  principle  that  ought  never  to  be  drawn  in  ques- 
tion. 

§  258.  Burden  of  Proof  Bests  upon  the  Prosecution. — 
Independent  of  any  modification  by  statute  to  rebut  the  presump- 
tion of  innocence,  the  burden  of  proof  rests  upon  the  prosecution 
in  every  kind  of  criminal  action   or  proceeding;  or,  as  otherwise 

421 


422  LAW    OF    EVIDENCE    IN    CRIMINAL   CASES. 

expressed  by  an  eminent  author,  "the  burden  of  proof  is  always 
on  the  party  who  asserts  the  existence  of  any  fact  which  infers 
legal  accountability."     Wills,  Circ.  Ev.  145,  Kule  2. 

Guilt  must  be  established  by  sufficient  evidence.  There  has 
been  various  formulae  in  use,  such  as  "beyond  a  reasonable  doubt," 
"fully  satisfied,"  "satisfied,  etc."  The  first  expression  is  said  to  be 
inexplainable.  Probably  as  sensible  a  definition  as  can  be  found, 
was  expressed  by  Baron  Parke:  "The  doubt,  however,  must  be 
not  a  trivial  one  such  as  speculative  ingenuity  may  raise,  but 
a  conscientious  one,  which  may  operate  upon  the  mind  of  a  ra- 
tional man,  acquainted  with  the  affairs  of  life."  Reg.  v.  Tawell 
Aylesbury  Special  Assizes,  1845,  cited  in  "Wills,  Circ.  Ev.  194; 
Bailey,  Onus  Proband!,  p.  442. 

Where  the  crime  consists  of  several  degrees,  this  burden  exists 
as  to  the  degree  charged,  and  as  to  every  fact  necessary  to  consti- 
tute that  degree;  and  that,  if,  upon  the  whole  evidence,  including 
that  part  of  the  defense,  as  well  as  that  of  the  prosecution,  the 
jury  entertain  a  reasonable  doubt  of  the  guilt  of  the  accused,  he 
is  entitled  to  the  benefit  of  that  doubt;  and  this  is  true  with  re- 
spect to  the  degree  of  the  crime  charged,  and  with  reference  to 
every  essential  requisite  of  that  degree;  and  that  in  all  these  re- 
spects the  burden  is  never  shifted  from  the  prosecutor  to  the 
prisoner.  Stokes  v.  People,  53  K  Y.  164,  13  Am.  Rep.  492; 
Broiherton  v.  People,  75  N.  Y.  159;  People  v.  MeCann,  16  ~N. 
Y.  58,  69  Am.  Dec.  642;  People  v.  Convoy,  97  N.  Y.  62-75,  2  K 
Y.  Crim.  Rep.  565;  People  v.  Schryver,  42  K  Y.  1,  1  Am.  Rep. 
480. 

"The  general  rule  as  to  the  burden  of  proof  in  criminal  cases  is 
sufficiently  familiar.  It  requires  the  government  to  prove,  beyond 
a  reasonable  doubt,  the  offense  charged  in  the  indictment,  and  if 
the  proof  fails  to  establish  any  of  the  essential  elements  necessary 
to  constitute  a  crime,  the  defendant  is  entitled  to  an  acquittal. 
This  results  not  only  from  the  well  established  principle  that  the 
presumption  of  evidence  is  to  stand  until  it  is  overcome  by  proof 
but  also  from  the  form  of  the  issue  in  all  criminal  cases  tried  on 
the  merits,  which  being  always  a  general  denial  of  the  crime 
charged  necessarily  imposes  on  the  government  the  burden  of 
showing  affirmatively  the  existence  of  every  material  fact  or  in- 
gredient which  the  law  requires  in  order  to  constitute  an  offense. 
If  the  act  charged  is  justifiable  or  excusable,  no  criminal  act  has 


BURDEN    OF    PROOF.  423 

been  committed  and  the  allegations  in  the  indictment  are  not 
proved.  This  makes  a  broad  distinction  in  the  application  of  the 
•rule  as  to  the  burden  of  proof  to  civil  and  criminal  cases.  In  the 
former,  matters  of  justification  or  excuse  must  be  specifically 
pleaded  in  order  to  be  shown  in  evidence,  and  the  defendant  is 
therefore,  by  the  form  of  his  plea,  obliged  to  aver  an  affirmative, 
and  thereby  to  assume  the  burden  of  establishing  it  by  proof, 
while  in  the  latter  all  such  matters  are  open  under  the  general 
issue,  and  the  affirmative,  namely,  proof  of  the  crime  charged, 
remains  in  all  stages  of  the  case  upon  the  government."  Com.  v. 
McKie,  1  Gray,  61,  61  Am.  Dec.  410.  Continuing,  the  learned 
judge  remarks — and  this  is  the  qualification  of  the  general  rule: 
"There  may  be  cases  where  a  defendant  relies  on  some  distinct, 
substantive  ground  of  defense  to  a  criminal  charge,  not  necessarily 
connected  with  the  transaction  on  which  the  indictment  is  founded 
(such  as  insanity,  for  instance)  in  which  the  burden  of  proof  is 
shifted  upon  the  defendant."  In  fact,  we  know  of  no  case  where 
it  has  been  held  that  the  rule  that  "the  burden  of  proof  never 
.shifts  from  the  state,"  has  been  held  to  extend  further  than  proof 
of  the  case  as  charged  in  the  indictment;  nor  of  any  case  where,  if 
.the  defendant  seeks  to  excuse  himself  from  liability  on  account  of 
some  substantive,  distinct  matter,  he  has  not  been  held  to  have 
the  laboring  oar,  and  the  onus  of  making  good  his  issue  thus  pre- 
sented. 

Much  has  been  written,  and  there  is  much  hypercriticism  in  the 
discussion  of  the  propositions  that  in  criminal  prosecutions  the 
■onus  is  never  shifted,  and  that  the  presumption  of  innocence 
.accompanies  the  prisoner  through  all  the  stages  of  his  trial. 
These  are  valuable  canons  of  the  law,  but,  like  most  other  general 
rules,  are  subject  to  some  modifications  in  their  application,  the 
observance  of  which  is  essential  to  the  good  order  and  well-being 
of  society.     JBraswell  v.  State,  2  Crim.  L.  Mag.  32. 

'  "All  the  presumptions  of  law,  independent  of  evidence,  are  in 
favor  of  innocence,  and  every  person  is  presumed  to  be  innocent 
until  he  is  proven  guilty.  If,  upon  such  proof,  there  is  a  reason- 
.able  doubt  remaining,  the  accused  is  entitled  to  the  benefit  of  it 
by  an  acquittal.'  In  the  decision  of  a  criminal  case,  there  must 
be  more  than  a  preponderance  of  evidence.  It  would  not  be  suf- 
ficient to  justify  a  conviction  if  the  jury  should  be  satisfied  of  the 
guilt  of  the  defendant  to  such   a  moral  certainty   as  would  inliu- 


424  LAW    OF    EVIDENCE    IN    CRIMINAL   CASES. 

ence  their  minds  in  the  important  affairs  of  life.  But  the  evidence 
must  entirely  satisfy  the  jury  of  the  guilt  of  the  defendant  before 
they  can  convict.  If  the  jury  are  not  entirely  satisfied,  they 
should  acquit."     People  v.  Levine,  85  Cal.  39. 

§  259.  Never  Shifts,  hut  is  with  Prosecution  through- 
out.— "Properly  it  (the  term  'burden  of  proof)  is  applied  only 
to  a  party  affirming  some  fact  essential  to  the  support  of  his  case.. 
Thus  ii-i'd  it  never  shifts  from  side  to  side  during  the  trial. 
Loosely  used  .  .  .  it  is  confounded  with  the  weight  of  evi- 
dence, a  very  different  thing,  which  often  shifts  from  one  side  to 
the  other  as  facts  and  presumptions  appear  and  are  overcome,  and 
in  this  indiscriminate  use  of  the  term  'burden  of  proof,'  much  of 
the  apparent  conflict  in  the  cases  has  its  origin.  For,  after  all,, 
the  test  of  the  burden  of  proof  is  very  simple,  and  so  is  the  ques- 
tion of  the  weight  of  evidence,  and  there  is  no  contrariety  in  the 
principle  adopted  by  the  authorities."  Pease  v.  Cole,  53  Conn. 
53,  55  Am.  Rep.  53. 

The  true  rule  is  that  the  burden  of  proof  never  shifts;  that  in 
all  cases,  before  a  conviction  can  be  had,  the  jury  must  be  satisfied 
from  the  evidence,  beyond  a  reasonable  doubt  of  the  affirmative 
of  the  issue  presented  in  the  accusation,  that  the  defendant  is 
guilty  in  the  manner  and  form  as  charged  in  the  indictment. 
Com.  v.  McKie,  1  Gray,  04,  61  Am.  Dec.  410;  Com.  v.  York, 
9  Met.  125,  43  Am.  Dec.  373;  Com.  v.  Webster,  5  Cush.  305,  52 
A  in.  Dec.  711;  Com.  v.  Eddy,  7  Gray,  584. 

"The  proposition  .  .  .  that  the  burden  of  proof  never  shifts 
on  the  defendant  at  any  stage  of  the  proceedings  is  not  strictly 
correct.  It  is  true  the  state  must  prove  the  offense  charged 
beyond  a  reasonable  doubt.  The  statute  then  casts  the  burden  of 
proof  as  to  matters  of  mitigation  or  excuse  upon  the  defendant. 
The  public  prosecutor  cannot  be  compelled  to  search  for  and  put 
in  evidence  all  the  facts  connected  with  the  transaction,  or  excul- 
patory facts  in  the  prisoner's  favor.  The  policy  of  the  law,  as 
evinced  by  the  presumption  of  innocence  and  the  doctrine  of  rea- 
sonable doubt,  would  require  the  public  prosecutor  to  introduce 
such  proof  as  will  give  a  fair  account  of  the  transaction.  This 
bring  done,  it  devolves  upon  the  defendant  to  produce  in  evidence- 
such  matters  of  mitigation,  justification,  or  excuse,  if  any  such 
exist,  as  may  tend  to  explain  his  action  and  show  the  necessity 
therefor;  otherwise  a  verdict  of  guilty  must  necessarily  be  returned 


BURDEN    OF   PROOF.  425- 

against  him.  He  is  not  required  by  the  statute  however,  to  prove 
such  circumstances  beyond  a  reasonable  doubt  or  to  the  extent  of 
satisfactorily  establishing  his  defense.  He  is  only  required  to- 
prove  the  same  as  any  other  facts  are  required  to  be  proved;  and 
if  the  matters  relied  on  be  supported  by  such  proof  as  would  pro- 
duce a  reasonable  doubt  in  the  minds  of  the  jury  as  to  the  guilt 
of  the  prisoner,  when  the  whole  evidence  concerning  the  transac- 
tion comes  to  be  considered  by  the  jury,  the  rule  of  law  is  that 
there  must  be  an  acquittal."  Alexander  v.  People,  96  111.96;. 
Kent  v.  People,  8  Colo.  503. 

§  260.  Where  a  Fact  is  Peculiarly  within  the  Knowledge 
of  a  Party. — But  where  a  fact  is  peculiarly  within  the  knowledge 
of  one  of  the  parties,  so  that  he  can  have  no  difficulty  in  showing 
it,  the  presumption  of  innocence  or  of  acting  according  to  law, 
will  not  render  it  incumbent  upon  the  other  side  to  prove  the 
negative;  but  the  party  who  must  know  the  fact  is  put  to  the 
proof  of  it.      l'i,  if  "I  States  v.  Wayward,  '1  Gall.  4S5. 

It  was  said  by  Abbott,  Ch.  J.,  that  the  party  was  called  on  to 
answer  for  an  offen>e  against  the  excise  laws,  sustains  not  the 
slightest  inconvenience  from  this  general  rule,  for. he  can  imme- 
diately produce  his  license;  whereas  if  the  case  is  taken  the  other 
way,  the  informer  is  put  to  a  considerable  inconvenience.  Har- 
risons Case,  cited  in  Paley,  Convictions  (2d  ed.)  45,  note.  See 
also  Pee  v.  Smith,  3  Burr.  1470.  The  same  rule  has  been  fre- 
quently acted  upon  in  civil  cases.  Thus,  on  an  action  against  a. 
person  for  practicing  as  an  apothecary,  without  having  obtained 
a  certificate,  the  proof  of  the  certificate  lies  upon  the  defendant, 
and  the  state  need  not  give  any  evidence  of  his  practicing  without 
it.  Apothecaries  Co.  v.  Bentley,  Buss.  &  M.  159;  People  v.  Nyce, 
34  Hun.  298. 

The  law  is  well  settled  that  "in  an  action  for  a  penalty  given  by 
statute,  it  was  not  necessary  for  the  prosecutor  to  disprove  any 
qualification;  that  in  such  case  the  onus  prooandi  lay  upon  the 
defendant."  People  v.  Quant,  2  Park.  Crim.  Bep.  410.  Tims, 
on  an  indictment  for  a  breach  of  the  excise  law,  evidence  of  a  sale 
of  spirituous  liquors  by  the  defendant,  in  less  quantities  than  five 
gallons,  establishes,  prima  facie,  the  offense.  It  is  in  such  case 
for  the  defendant  to  show  that  he  has  the  license  required  by  law.. 
Smith  v.  Joyce,  12  Barb.  21. 


426  LAW    OF    EVIDENCE    IN    CRIMINAL    CASES. 

§  261.  When  Accused  must  Establish  the  Defense  of  In- 
sanity.— Crimes  can  only  be  committed  by  human  beings  who  are 
in  a  condition  to  be  responsible  for  their  acts;  and  upon  this  gen- 
eral proposition,  the  prosecutor  holds  the  affirmative,  and  the 
burden  of  proof  is  upon  him.  Sanity  being  the  normal  and  usual 
condition  of  mankind,  the  law  presumes  that  every  individual  is 
•in  that  state.  Hence  a  prosecutor  may  rest  upon  that  presump- 
tion without  other  proof.  The  fact  is  deemed  to  be  proved  prima 
facie.  Whoever  denies  this,  or  interposes  a  defense  based  upon* 
its  untruth,  must  prove  it.  The  burden,  not  of  the  general  issue 
of  crime  by  a  competent  person,  but  the  burden  of  overthrowing 
the  presumption  of  sanity  and  of  showing  insanity,  is  upon  the 
person  who  alleges  it;  and  if  evidence  is  given  tending  to  estab- 
lish insanity,  then  the  general  question  is  presented  to  the  court 
and  jury  whether  the  crime,  if  committed,  was  committed  by  a 
person  responsible  for  his  acts;  and  upon  this  question  the  pre- 
sumption of  sanity  and  the  evidence  are  all  to  be  considered,  and 
the  prosecutor  holds  the  affirmative,  and,  if  a  reasonable  doubt 
exists  as  to  whether  the  prisoner  is  insane  or  not,  he  is  entitled  to 
the  benefit  of  the  doubt,  and  to  an  acquittal.  BrotJierton  v.  Peo- 
ple, 75  K  Y.  159;  G 'Connell  v.  People,  87  K  Y.  377,  41  Am. 
Eep.  379;  Walker  v.  People,  SS  K  Y.  81;  Casey  v.  People,  31 
Hun,  158;  People  v.  McCann,  16  K  Y.  58,  69  Am.  Dec.  612; 
People  v.  Schrtiyver,  42  K  Y.  1,  1  Am.  Kep.  480;  Walter  v.  Peo- 
ple, 32  K  Y.  147;  O'Brien  v.  People,  4S  Barb.  274;  People  v. 
Robinson,  1  Park.  Crim.  Kep.  649;  State  v.  Iloyt,  46  Conn.  330; 
State  v.  Lawrence,  57  Me.  574;  State  v.  Jones,  50  !N".  H.  369,  9 
Am.  Eep.  242;  Dacey  v.  People,  116  111.  555;  State  v.  Crawford, 
11  Kan.  32. 

§  262.  Proving  a  Negative.— The  burden  of  proving  the 
defendant's  guilt  may  require  the  prosecution  to  prove  a  negative. 
Com.  v.  Samuel,  19  Mass.  103;  State  v.  Morphy,  33  Iowa,  270; 
State  v.  Ilirsch,  45  Mo.  429;  State  v.  Wilbounie,  S7  N.  C.  529. 
But  where  the  fact  is  peculiarly  within  the  knowledge  of  one 
party  rather  than  the  other,  the  burden  of  proof  may  be  imposed 
on  the  one  having  the  means  of  proof.  State  v.  Arnold,  35  JST. 
( '.  1  84;  Pounders  v.  State,  37  Ark.  399;  State  v.  Camden,  48  N. 
J.  L.  89;  Wheat  v.  State,  6  Mo.  455;  Williams  v.  State,  35  Ark. 
430;  Pi  ople  v.  Syce,  34  Hun,  298;  Flower  v.  State,  39  Ark.  209; 
State    v.  Higgins,  13  E.  I.  330;    State  v.  Keggon,  55  Is.  II.  19; 


BURDEN    OF    PROOF.  427 

•Com.  v.  Locke,  114  Mass.  288;  Abbott,  Trial  Brief,  §§  739,  740. 
See  §  4,  ante. 

There  are  many  negative  propositions  which  admit  of  easy  and 
-certain  proof;  for  instance,  that  a  man  was  not  at  a  given  place; 
this  may  be  established  by  showing  that  lie  was  at  another  place, 
•so  distant  as  to  render  it  impossible  to  suppQse  that  he  was  at  both; 
■  and  in  this  and  similar  cases,  the  difficulty  of  showing  a  negative 
will  have  little  or  no  weight  in  determining  upon  whom  the  onus 
lies.     Phil.  Ev.  Cowen  &  Hill's  Notes,  note  346. 

"An  affirmative  proposition  is  to  be  proved  by  the  party  ad- 
vancing it;  and  so  a  negative  proposition.  Among  the  most 
authoritative  exponents  of  this  view  is  Mr.  Best,  in  his  treatise  on 
Evidence.  'The  general  rule,'  he  declares,  'is,  that  the  burden  of 
proof  lies  on  the  party  who  asserts  the  affirmative  of  the  issue,  or 
question  in  dispute, — according  to  the  maxim,  Ei  incumbit  jpro- 
■batio  qui  dicit,  non  qui  negatf  and  to  this  effect  he  cites  Mr. 
Starkie  and  Mr.  Phillipps,  sustaining  his  views  by  a  copious  expo- 
sition. The  negative,  it  is  argued,  is  not  suseej)tible  of  proof. 
An  affirmative  proposition,  therefore,  is  the  only  kind  of  propo- 
sition which  a  party  can  be  called  upon  to  prove. 

"But  to  this  it  has  been  well  replied,  that  there  is  no  proposition 
which  does  not  blend  negation  with  affirmation,  and  in  which 
affirmation  of  one  side  does  not  involve  a  denial  of  the  other  side. 
An  alibi,  for  instance,  is  at  once  a  negation  of  the  defendant's 
presence  at  a  particular  spot  at  a  particular  time,  and  an  affirma- 
tion of  his  presence  at  another  place  at  the  same  time.  Or  the 
defense  of  insanity  is  in  like  manner  both  an  affirmation  and  a 
negation — an  affirmation  of  the  existence  of  disturbing  mental 
■conditions,  a  negation  of  sanity.  Nor  is  this  all.  In  many  cases 
•each  party  unites,  with  an  affirmation  on  his  part  of  his  own  rights, 
and  a  denial  of  the  rights  of  his  opponent;  and  the  affirmation  and 
denial  are  so  mixed  as  to  be  incapable  of  severance  in  proof." 
Whart.  Grim.  Ev.  §§  10,  320. 

§  263.  A  Prima  Facie  Case  will  not  Rebut  the  Pre- 
sumption of  Innocence. — In  a  criminal  case,  a  prima  facie  case 
•of  guilt  does  not  generally  rebut  the  presumption  of  innocence,  or 
.shift  the  burden  of  proof.  Until  the  state  proves,  in  the  first 
instance,  beyond  a  reasonable  doubt,  the  facts  which  constitute 
the  offense,  the  accused  is  not  required  to  establish  his  innocence 
by  exculpatory  evidence.     The  jury  are  not  authorized  to   find 


426  LAW    OF    EVIDENCE    IN    CRIMINAL    CASES. 

the  defendant  guilty  on  the  evidence  of  a  single  witness,  upon 
whose  testimony  the  question  of  guilt  depends,  if  they  have  a- 
reasonable  doubt  of  the  truth  of  his  statements.  Washington  v. 
State,  58  Ala.  355. 

§  264.  Burden  of  Proof  in  Statutory  Crimes.— In  all  stat- 
utory crimes  it  is  competent  for  the  legislature  to  say  that  certain 
facts  proven  by  the  common  wealth  shall  be  sufficient  to  make  out 
a  presumptive  cast'  against  the  accused,  and  cast  the  burden  of 
proof  upon  him,  provided  the  burden  is  cast  upon  him  to  prove 
his  innocence,  without  first  requiring  the  commonwealth  to  prove 
some  material  fact  or  circumstance  conducing  to  prove  the  guilt 
of  the  accused.  For  instance,  where  it  has  been  proven  that  a 
faro  bank  or  other  table  mentioned  in  the  statute  has  been  set  up 
in  any  of  the  houses  mentioned  in  the  statute,  the  statute  makes 
such  proof  evidence  that  the  faro  bank  or  other  table  was  set  up 
by  the  permission  of  the  person  occupying  or  controlling  the 
house,  etc.  The  constitutionality  of  this  provision  has  never  been 
questioned.  In  the  case  of  Buford  v.  Com.  14  B.  Mon.  24,  the 
right  of  the  commonwealth  to  convict  on  such  testimony  was 
.-auctioned.     Com.  v.  Minor,  88  Ky.  422. 

§  265.  The  Rule  Deduced  from  the  Celebrated  Stokes 
Case. — It  is  a  cardinal  rule  in  criminal  prosecutions  that  the 
burden  of  proof  rests  upon  the  prosecutor;  and  that  if  upon  the 
whole  evidence,  including  that  of  the  defense  as  well  as  of  the 
prosecution,  the  jury  entertains  a  reasonable  doubt  of  the  guilt  of 
the  accused,  he  is  entitled  to  the  benefit  of  the  doubt.  The  jury 
must  be  satisfied  on  the  whole  evidence  of  the  guilt  of  the  accused; 
and  it  is  clear  error  to  charge  them,  when  the  prosecution  has 
made  out  a  prima  facie  case  and  evidence  has  been  introduced 
tending  to  show  a  defense,  that  they  must  convict,  unless  they 
are  satisfied  of  the  truth  of  the  defense.  Such  a  charge  throws, 
the  burden  of  proof  upon  the  prisoner  and  subjects  him  to  a  con- 
viction, though  the  evidence  on  his  part  may  have  created  a  rea- 
sonable doubt  in  the  minds  of  the  jury  as  to  his  guilt.  Instead 
of  leaving  it  to  them  to  determine  upon  the  whole  evidence 
whether  his  guilt  is  established  beyond  a  reasonable  doubt,  it 
constrains  them  to  convict,  unless  they  are  fully  satisfied  that  he- 
has  proved  his  innocence.  Stokes  v.  People,  53  N.  Y.  104,  IS 
Am.  Dec.  402. 


BUKDEN    OF    PKOOF.  429 

§  266.  Yiews  of  Sir  James  Stephen.  —  "Whoever  desires 
any  court  to  give  judgment  as  to  any  legal  right  or  liability  de- 
pendent on  the  existence  or  non-existence  of  facts  which  he 
asserts  or  denies  to  exist,  must  prove  that  those  facts  do  or  do  not 
exist.  If  the  commission  of  a  crime  is  directly  in  issue  in  any 
proceeding,  criminal  or  civil,  it  must  be  proved  beyond  reasonable 
doubt.  The  burden  of  proving  that  any  person  has  been  guilty 
•of  a  crime  or  wrongful  act  is  on  the  person  who  asserts  it,  whether 
the  commission  of  such  act  is  or  is  not  directly  in  issue  in  the 
action.  .  .  .  The  burden  of  proof  in  any  proceeding  lies  at 
first  on  that  party  against  whom  the  judgment  of  the  court  would 
be  given  if  no  evidence  at  all  were  produced  on  either  side,  regard 
being  had  to  any  presumption  which  may  appear  upon  the  plead- 
ings. As  the  proceeding  goes  on,  the  burden  of  proof  may  be 
shifted  from  the  party  on  whom  it  rests  at  first  by  his  proving 
facts  which  raise  a  presumption  in  his  favor.  .  .  .  The  bur- 
den of  proof  as  to  any  particular  fact  lies  on  that  person  who 
wishes  the  court  to  believe  in  its  existence,  unless  it  is  provided 
by  any  law  that  the  burden  of  proving  that  fact  shall  lie  on  any 
particular  person;  but  the  burden  may  in  the  course  of  a  case  be 
shifted  from  one  side  to  the  other,  and  in  considering  the  amount 
of  evidence  necessary  to  shift  the  burden  of  proof  the  court  has 
regard  to  the  opportunities  of  knowledge  with  respect  to  the 
fact  to  be  proved  which  may  be  possessed  by  the  parties  respect- 
ively. .  .  .  The  burden  of  proving  any  fact  necessary  to  be 
proved  in  order  to  enable  any  person  to  give  evidence  of  any 
other  fact  is  on  the  person  who  wishes  to  give  such  evidence." 
Stephen.  Dig.  chap.  13. 

§  267.  Summary  of  the  Conclusions  Reached. — It  is  idle  to 
pursue  this  topic  further,  as  there  are  few  legal  propositions  that 
are  so  wholly  bereft  of  technical  embarrassments.  The  formula 
we  may  safely  adduce  from  the  reported  cases  as  to  the  burden  of 
proof,  may  be  stated  as  follows :  It  is  obligatory  upon  the  state 
to  sustain  the  burden  of  proof  throughout  the  trial,  so  far  as  re- 
gards the  material  averments  of  the  indictment,  and  the  proof  of 
the  same.  And  as  regards  these  averments,  the  burden  of  proof 
never  shifts.  Where,  however,  the  defense  relies  upon  some  dis- 
tinct substantive  matter  which  is  calculated  to  exempt  him  from 
punishment  and  absolve  him  from  liability,  then  that  is  matter 
foreign  to  the  issue  as  made  by  the  state  in  her  charge  against 


430  LAW    OF   EVIDENCE   IN   CRIMINAL   CASES. 

him,  and  the  burden  of  proving  it  in  reason,  common  sense  and 
law,  should  be  upon  the  defendant.  Ake  v.  State,  6  Tex.  App.. 
398,  32  Am.  Rep.  586.  For  an  exceedingly  valuable  review  of 
this  discussion,  the  practitioner  is  referred  to  an  extended  note 
appended  to  the  case  of  Boswell  v.  State,  53  Ala.  307,  as  reported, 
in  53  Am.  Rep.  20. 

The  "ultimate  essence"  of  all  reasoning  on  the  subject  may  be 
thus  expressed :  "The  evidence  given  by  the  prosecution  must 
furnish  an  adequate  foundation  for  the  conclusion  of  fact  involved 
in  the  verdict  against  the  accused."  Otherwise  the  state  has  failed 
to  rid  itself  of  the  onus  probandi  and  the  trial  must  result  in  an 
acquittal. 


CHAPTER   XXXYI. 

REASONABLE  DOUBT. 

§  268.  Difficulty  in  Defining. 

269.  The  Phrase  "Moral  Certainty'''  Examined. 

270.  Observations  of   Authority   on  the    Term   "Reasonable- 

Doubt:' 

271.  Views  of  the  Missouri  Supreme  Court. 
2  72.  Extended  Citation  of  the  Authorities. 

§  268.  Difficulty  in  Defining. — Many  efforts  have  been  made 
to  define  the  expression  "reasonable  doubt,"  and  hitherto  the  defi- 
nitions given  are  not  remarkable  for  clearness  of  thought  or 
accuracy  of  expression.  They  appear  generally  to  be  involved  in 
the  uncertainty  of  the  subject  which  they  are  attempting  to 
define,  and  it  is  much  easier  to  say  what  is  not  a  correct  definition 
of  the  term  than  to  determine  the  precise  signification  of  the 
expression  as  used  in  the  trial  of  criminal  cases. 

The  following  instruction  as  to  what  was  meant  by  "reasonable 
doubt"  was  approved  by  Campbell,  Ch.  J.,  in  People  v.  Pinley, 
38  Mich.  482,  viz: 

"A  'reasonable  doubt'  is  a  fair  doubt,  growing  out  of  the  testi- 
mony in  the  case.  It  is  not  a  mere  imaginary,  captious,  or  possi- 
ble doubt,  but  a  fair  doubt,  based  upon  reason  and  common  sense. 
It  is  such  a  doubt  as  may  leave  your  minds,  after  a  careful  exam- 
ination of  all  the  evidence  in  the  case,  in  that  condition  that  you 
cannot  say  you  have  an  abiding  conviction,  to  a  moral  certainty,, 
of  the  truth  of  the  charge  here  made  against  the  respondent." 

A  reasonable  doubt  is  one  arising  from  a  candid  and  impartial 
investigation  of  all  the  evidence,  and  such  as,  in  the  graver  trans- 
actions of  life,  would  cause  a  reasonable  and  prudent  man  to  hesi- 
tate and  pause.  May  v.  People,  60  111.  110;  Miller  v.  People,^ 
111.  457;  Connaghan  v.  Peopjle,  SS  111.  460;  Dunn  v.  People,  109 
111.  635. 

A  reasonable  doubt  entertained  by  some  of  the  members  of  the 
jury  may  not  compel  an  acquittal,  but  it  may  so  strongly  prevail, 
and  among  so  many,  as  to  warrant  others  in  yielding  their  opin- 

431 


432  LAW    OF    EVIDENCE    IN    CRIMINAL    CASES. 

ions,  and  joining  in  a  verdict  of  acquittal.  Stits  v.  State,  104 
Ind.  359. 

It  is  not  eas}'  to  define,  in  a  few  words,  what  a  reasonable  doubt 
is,  and,  in  some  jurisdictions,  it  is  deemed  good  practice  not  to 
attempt  any  explanation.  In  Ohio  it  is  common  to  define  the 
term.  When  it  is  attempted,  the  explanation  should  be  an  aceur 
rate  one.  The  definition  given  by  Birchard,  e/!, in  Clark  v. /State, 
12  Ohio,  483,  note,  40  Am.  Dec.  481,  is  well  established  as  a  safe 
one,  and  its  sufficiency  is  not  impaired  by  its  age.  It  is  safe  to 
follow  established  precedents.  Morgan  v.  State,  48  Ohio  St.  371. 
The  definition  referred  to  is  as  follows: 

"You  will  be  justified  and  are  required  to  consider  a  reasonable 
doubt  as  existing,  if  the  material  facts,  without  which  guilt  cannot 
be  established,  may  fairly  be  reconciled  with  innocence.  In 
human  affairs  absolute  certainty  is  not  always  attainable.  From 
the  nature  of  things,  reasonable  certainty  is  all  that  can  be  attained 
on  many  subjects.  When  a  full  and  candid  consideration  of  the 
evidence  produces  a  conviction  of  guilt,  and  satisfies  the  mind  to 
a  reasonable  certainty,  a  mere  captious  or  ingenious  artificial 
doubt  is  of  no  avail.  You  will  look,  then,  to  all  the  evidence  and 
if  that  satisfies  you  of  the  defendant's  guilt,  you  must  say  so.  If 
you  are  not  fully  satisfied,  but  find  only  that  there  are  strong 
probabilities  of  guilt,  your  only  safe  course  is  to  acquit."  Birchard, 
J.,  in  Clark  v.  State,  12  Ohio,  495,  note,  40  Am.  Dec.  181. 

In  criminal  matters  nothing  is  to  be  taken  by  intendment,  but 
the  utmost  strictness  of  construction  prevails  in  favor  of  liberty 
And  life.  State  v.  Dickinson,  41  Wis.  299.  Again,  it  is  an 
imperative  rule  of  evidence  that  the  allegations  of  the  prosecutor 
must  be  proved  beyond  reasonable  doubt.  In  civil  cases,  the  law, 
in  general,  only  requires  that  the  fact  in  issue  shall  be  established 
by  the  party  having  the  burden  of  proof,  to  the  reasonable  satis- 
faction of  the  jury.  This  appears  to  be  the  meaning  of  the 
phrase  "by  a  preponderance  of  proof."  Com.  v.  York,  9  Met.  £3, 
t3  Am.  Rep.  373;  Hichardson  v.  Burleigh,  85  Mass.  479. 

The  administration  of  the  criminal  law  is  essentially  dependent, 
in  a  large  degree  necessarily,  on  the  existence  and  force  of  cir- 
cumstances,  for  the  purpose  of  making  out  criminal  charges.  This 
results  from  the  fact  that  crimes  ordinarily  seek  concealment. 
They  are  committed  ordinarily,  openly,  and  before  the  public,  or 
before  the  public  eye,  but  occasions  are  sought  for  the  commission 


REASONABLE    DOUBT.  433 

of  crime  when  safety  or  security  from  observation,  or  from  prose- 
cution and  punishment  to  a  certain  degree,  may  be  within  hope 
and  the  expectation  of  the  culprit.  For  this  reason  it  has  been 
found  at  all  times  in  the  intelligent  administration  of  the  law 
necessary  to  resort  in  a  great  measure  to  the  force  and  effect  of 
circumstances  in  order  to  discover  from  the  inference,  that  maybe 
drawn  from  the  circumstances  whether  the  offense  has  or  has  not 
been  committed.  The  law  upon  this  subject  has  been  wisely  and 
carefully  settled  for  the  purpose  of  guarding  the  rights  and 
interests  of  the  defendant  as  well  as  protecting  those  of  the  public. 
And  it  requires,  where  the  case  depends,  at  least  one  branch  of 
it  depends,  on  circumstantial  evidence,  that  those  circumstances 
shall  be  of  such  a  persuasive  or  satisfactory  character  as  to  leave 
no  rational  ground  of  doubt  as  to  the  defendant's  guilt,  before 
he  may  be  convicted.  In  other  words,  the  circumstances  are 
required  to  be  of  so  forcible  a  nature  as  to  exclude  every  other 
reasonable  supposition  or  hypothesis  or  theory  than  that  of  the 
defendant's  guilt,  before  a  conviction  can  be  reached  by  force  of 
evidence  of  this  description. 

"A  reasonable  doubt  is  not  such  a  doubt  as  any  man  may  start 
by  questioning  for  the  sake  of  a  doubt,  nor  a  doubt  suggested  or 
surmised  without  foundation  in  the  facts  or  testimony.  It  is  such 
a  doubt  only  as  in  a  fair,  reasonable  effort  to  reach  a  conclu^ioe 
upon  the  evidence,  using  the  mind  in  the  >ame  manner  as  in  other 
matters  of  importance,  prevents  the  jury  from  coming  to  a  con- 
clusion in  which  their  minds  rest  satisfied.  If  so  using  the  mind, 
and  considering  all  the  evidence  produced,  it  leads  to  a  conclusion 
which  satisfies  the  judgment,  and  leaves  upon  the  mind  a  settled 
conviction  of  the  truth  of  the  fact,  it  is  the  duty  of  the  jury  so  to 
declare  the  fact  by  their  verdict.  It  is  possible  always  to  question 
any  conclusion  derived  from  testimony.  Such  questioning  is  not 
what  is  a  reasonable  doubt,  but  the  circumstances,  if  the  case  is  one 
of  circumstantial  evidence,  must  so  concur  that  no  well  established 
fact  or  circumstance,  which  is  capable  of  controlling  the  case, 
should  go  counter  to  the  conclusion-  sought  to  be  reached,  or 
which  are  to  be  reached.  If  al!  the  circumstances  concur  in  one 
result,  it  is  for  the  jury  to  say  whether  those  circumstances  are  suffi- 
cient to  establish  that  result,  or  whether  there  is  a  failure  to  cover 
probabilities  of  the  case,  so  a.-  to  make  it  reasonably  certain  that 
the  fact  has  been  made  out.  .  .  ."  Com.  v.  Costley,  118  Mass.  16. 
23 


434  LAW    OF    EVIDENCE    IN    CRIMINAL    CASES. 

Mr.  Justice  Graves,  in  People  v.  Marble,  38  Mich.  125,  consid- 
ered  the  following  instruction  misleading  and  inaccurate,  viz: 

"What  1  mean  by  a  'reasonable  doubt'  is  that  it  must  be  such 
evidence  as  would  satisfy  you, — as  you  would  be  willing  to  act 
upon  in  any  of  your  own  important  concerns,  your  own  business. 
Such  evidence  as  would  satisfy  you  it  would  be  proper  for  you  to 
act  upon  in  any  of  your  own  private  concerns, — that  would  be 
evidence  that  would  satisfy  you  beyond  a  'reasonable  doubt.' 
That  is  what  this  means." 

We  do  not  think  that  the  phrase  "reasonable  doubt"  is  of  such 
unknown  or  uncommon  signification  that  an  exposition  by  a  trial 
judge  is  called  for.  Language  that  is  within  the  comprehension 
of  persons  of  ordinary  intelligence  can  seldom  be  made  plainer  by 
further  definition  or  refining.  All  persons  who  possess  the  quali- 
fications of  jurors  know  that  a  "doubt"  is  a  fluctuation  or  uncer- 
tainty of  mind  arising  from  defect  of  knowledge  or  of  evidence, 
and  that  a  doubt  of  the  guilt  of  the  accused,  honestly  entertained, 
is  a  "reasonable  doubt." 

We  repeat  here  what  was  said  by  Mr.  Justice  Campbell  upon 
this  subject  in  Hamilton  v.  People,  29  Mich.  104,  namely: 

"But  we  do  not  think  that  juries  can  derive  any  help  from 
attempts,  by  numerous  and  complicated  requests,  to  explain  what 
would  be  very  much  plainer  without  them.  If  a  jury  cannot 
understand  their  duty  when  told  they  must  not  convict  when  they 
have  a  reasonable  doubt  of  the  prisoner's  guilt,  or  of  any  fact 
essential  to  prove  it,  they  can  very  seldom  get  any  help  from  such 
subtleties  as  require  a  trained  mind  to  distinguish.  Jurors  are 
presumed  to  have  common  sense,  and  to  understand  common 
English;  but  they  are  not  presumed  to  have  professional  or  any 
high  degree  of  technical  or  linguistic  training."  People  v.  Stu- 
henvoll,62  Mich.  329. 

"Then,  what  is  reasonable  doubt?  It  is  a  term  often  used 
.  .  .  but  not  easily  defined.  It  is  not  a  moral  and  possible  doubt, 
because  everything  relating  to  human  affairs  and  depending  upon 
moral  evidence,  is  open  to  some  possible  or  imaginary  doubt.  It 
is  that  state  of  the  case  which,  after  entire  consideration  of  all  the 
evidence,  leaves  the  minds  of  the  jurors  in  that  condition  that 
they  cannot  say  they  feel  an  abiding  conviction  to  a  moral  cer- 
tainty of  the  truth  of  the  charge.  The  burden  of  proof  is  upon 
the  prosecutor;  all  the  presumptions  of  law,  independent  of  evi- 


KEASONAKLE    DOUBT.  435 

dence,  are  in  favor  of  innocence,  and  every  person  is  presumed  to 
be  innocent  until  he  is  proved  guilty.  If  upon  such  proof  there 
is  reasonable  doubt  remaining,  the  accused  is  entitled  to  the  ben- 
efit of  it  by  an  acquittal.  For  it  is  not  sufficient  to  establish  a 
probability  .  .  .  that  the  fact  charged  is  more  likely  to  be 
true  than  the  contrary,  but  the  evidence  must  establish  the  proof 
of  the  fact  to  a  reasonable  and  moral  certainty,  a  certainty  that 
convinces  and  directs  the  understanding,  and  satisfies  the  reason 
and  judgment  of  those  who  are  bound  to  act  conscientiously  upon 
it;  this  we  take  to  be  proof  beyond  a  reasonable  doubt,  because  if 
the  law,  which  depends  mostly  upon  considerations  of  a  moral 
doubt,  should  go  further  than  this  and  require  absolute  certainty, 
it  would  exclude  circumstantial  evidence  altogether."  Shaw,  Ch. 
J.,  in  Com.  v.    Webster,  5  Cush.  320,  52  Am.  Dec.  711. 

§  269.  The  Phrase  "Moral  Certainty"  Examined.— 'The 

phrase  'moral  certainty'  has  been  introduced  into  our  jurispru- 
dence from  the  publicists  and  metaphysicians,  and  signifies  only  a 
very  high  degree  of  probability.  It  was  observed  by  Puffendorf 
that,  'when  we  declare  such  a  thing  to  be  morally  certain,  because 
it  has  been  confirmed  by  credible  witnesses,  this  moral  certitude 
is  nothing  else  but  a  strong  presumption  grounded  on  probable 
reasons,  and  which  very  seldom  fails  and  deceives  us.'  1  Law  of 
Nature  &  Nations  (Eng.  ed.  1749)  chap.  2,  §  11.  'Probable  evi- 
dence,' says  Bishop  Butler,  in  the  opening  sentence  of  his  Analogy, 
'is  essentially  distinguished  from  demonstrative  by  this,  that  it 
admits  of  degrees,  and  of  all  variety  of  them,  from  the  highest 
moral  certainty  to  the  very  lowest  presumption.'  Proof  'beyond 
a  reasonable  doubt'  is  not  beyond  all  probable  or  imaginary  doubt, 
but  such  proof  as  precludes  every  reasonable  hypothesis  except 
that  which  it  tends  to  support.  It  is  proof  'to  a  moral  certainty' 
as  distinguished  from  an  absolute  certainty.  As  applied  to  a  ju- 
dicial trial  for  crime,  the  two  phrases  are  synonymous  and  equiv- 
alent; each  has  been  used  by  eminent  judges  to  explain  the  other; 
and  each  signifies  such  proof  as  satisfies  the  judgment  and  con- 
sciences of  the  jury,  as  reasonable  men,  and  applying  their  reason 
to  the  evidence  before  them,  that  the  crime  charged  has  been 
committed  by  the  defendant,  and  so  satisfies  them  as  to  leave  uo 
other  reasonable  conclusion  possible.  .  .  .  'The  evidence  must 
establish  the  truth  of  the  fact  to  a  reasonable  and  moral  certainty 
a  certainty  that  convinces  and  directs  the  understanding,  and  sat- 


436      x  LAW    OF    EVIDENCE    IN    CRIMINAL    CASES. 

isfics  the  reason  and  judgment,  of  those  who  are  bound  to  act 
conscientiously  upon  it.  This  we  take  to  be  proof  beyond  rea- 
sonable doubt;  because  if  the  law,  which  most  depends  upon  con- 
siderations of  a  moral  nature,  should  go  further  than  this,  and 
require  absolute  certainty  it  would  exclude  circumstantial  evidence 
altogether.'  See  also  Com.  v.  Goodwm,  14  Gray,  45.  Baron 
Parke,  in  a  case  tried  before  him,  expressed  the  same  thought 
conversely,  thus  :  'Such  a  moral  certainty  as  convinces  the  minds 
of  the  tribunal,  as  reasonable  men,  beyond  all  reasonable  doubt.' 
Reg.  v.  Sterne,  Surrey  Sum.  Assizes,  1843,  cited  in  Best,  Ev.  §95. 
And  instructions  that  the  jury  should  be  satisfied  of  the  defend- 
ant's guilt  beyond  a  reasonable  doubt  have  often  been  held  suffi- 
cient, without  further  explanation.  Com.  v.  Tuttle,  12  Gush. 
502;  Com.  v.  Cobb,  14  Gray,  57;  Com.  v.  Harman,  4  Pa.  269; 
Reg.  v.  White.  4  Fost.  &  F.  383  and  note.  .  .  .  When  sev- 
eral forms  of  expression  are  equally  accurate,  it  is  within  the  dis- 
cretion of  the  court  at  the  trial  to  choose  that  form  which  it  deems 
best  adapted  to  make  the  rule  of  law  intelligible  to  common 
minds.  Kelly  v.  Jackson.  31  U.  S.  6  Pet.  622,  8  L.  ed.  523; 
Morris  v.  Bowman,  12  Gray,  467;  Blake  v.  Sawm,  10  Allen, 
340;  State  v.  Reed,  62  Me.  129."  Com.  v.  Costley,  118  Mass.  23. 
ij  270.  Observations  of  Authority  on  the  Term  "Rea- 
sonable Doubt." — When  the  evidence  is  conflicting,  it  is  error 
for  the  court  to  refuse  to  charge  the  doctrine  of  reasonable  doubt. 
X.  Y.  Code  Grim.  Proc.  §§  389,  390;  Spears  v.  State,  2  Tex.  App. 
244;  May  v.  State,  6  Tex.  App.  191;  Mace  v.  State,  6  Tex.  App. 
47'  K  Snyder  v.  State,  59  Ind.  105;  Whart.  Horn.  (2d  ed.)  §  649. 
Where  the  court,  in  defining  what  is  a  reasonable  doubt,  includes 
something  which  ought  not,  in  fairness  to  the  prisoner,  to  be 
included,  a  new  trial  should  be  granted.  State  v.  Johnson,  16 
Xev.  36;  People  v.  Brenvn,  59  Gal.  345;  Anderson  v.  State,  41 
Wis.  430;  Meyers  v.  Com.  83  Pa.  143;  Castle  v.  State,  75  Ind.  146; 
State  v.  Sloan,  55  Iowa,  220.  A  reasonable  doubt  may  not  only 
arise  out  of  the  evidence,  but  may  be  the  result  of  a  want  of  evi- 
dence. Massey  v.  State,  1  Tex.  App.  564;  Densmore  v.State,67 
Ind.  306;  Wright  v.  State,  69  Ind.  163,  35  Am.  Rep.  212;  Batten 
v.  State,  SO  Ind.  394;  Holmes  v.  State,  9  Tex.  App.  313;  State  v. 
/.'"/•'  r,  1 1  New  34s;  Mixon  v.  State,  55  Miss.  527.  A  reasonable 
doubt  exists  when  the  evidence  is  not  sufficient  to  satisfy  the 
judgment  of  the  truth  of  a  proposition  with  such  certainty  that  a 


REASONABLE    DOUBT.  437 

prudent  man  would  feel  safe  in  acting  upon  it  in  his  own  impor- 
tant affairs.  Arnold  v.  State,  23  Ind.  170;  State  v.  Reed,  62  Me. 
142;  Miles  v.  United  States,  103  TJ.  S.  304,  26  L.  ed.  481;  Com. 
v.  Costley,  118  Mass.  16;  People  v.  Finley,  38  Mich.  482;  Mc- 
Gulre  v.  People,  44  Mich.  286, 38  Am.  Rep.  265;  State  v.  Bridges, 
29  Kan.  138;  State  v.  Sumrru  rs,  !<  West.  L.  J.  415.  •  Nor  is  it  an 
answer  to  what  has  been  said,  that  the  aggregated  common  sense 
of  the  twelve  jurors  is  to  determine  when  a  juror  is  "able  to  give 
some  reason"  for  his  doubt.  It  is  not  necessary  he  should  be  able 
to  do  so  even  to  his  own  satisfaction.  1)>  nsmore  v.  State,  Wright 
v.  State,  Anderson  v.  State  and  Meyers  v.  Com.  supra;  People 
v.  Ah  Sing,  51  Cal.  372;  Bishop,  Crim.  Proc.  §  1094;  People  v. 
Schryer,  42  N.  Y.  6,  1  Am.  Rep.  480;  People  v.  McCann,  16 
N.  Y.  58.  69  Am.  Dec.  642. 

^  271.  Yiews  of  the  Missouri  Supreme  Court.  —  Without 
attempting  to  clothe  the  decisions  of  the  Missouri  supreme  court 
witli  any  extra-territorial  effect,  or  to  impute  to  them  any  special- 
ized virtue,  we  may  still  insist  that  the  exceptional  mental  equip- 
ment of  that  court  imparts  to  its  decisions  a  very  high  degree  of 
legal  certitude.  Its  expositions  of  the  law  have  been  rarely 
questioned,  and  the  identical  topic  under  review  has  been  the 
subject  of  very  recent  consideration.  In  order  to  italicise  a  dis- 
tinction of  great  importance,  I  excerpt  from  the  opinion  of  Chief 
Justice  Henry  in  the  case  of  State  v.  Shaefft  r.  89  Mo.  271.  which 
was  handed  down  in  1886,  and  faithfully  represents  the  present 
status  of  the  law  relating  to  the  subject,  not  only  in  the  state  of 
Missouri  but  throughout  our  entire  federation.  The  argument 
unfolds  itself  with  all  the  precision  and  certainty  of  a  mathemat- 
ical demonstration. 

"  The  burden  of  proof  to  establish  the  guilt  of  defendant  de- 
volves upon  the  state,  and  the  law  clothes  him  with  a  presump- 
tion of  innocence  which  attends  and  protects  him  until  it  is 
overcome  by  testimony  which  proves  his  guilt  beyond  a  reasonable 
doubt.  By  a  reasonable  doubt,  is  meant  a  substantial  doubt,  based 
upon  the  evidence  or  want  of  evidence  in  the  case,  and  is  not  a 
bare  possibility  of  defendant's  innocence."  This  instruction  was 
approved  and  declared  to  be  the  law  in  all  criminal  cases.  State 
v.  Gonee,  79  Mo.  600. 

In  a  subsequent  case  the  court  was  obliged  to  encounter  the 
same  question  and  reverse  a  conviction  in  a  criminal  case  because 


-JroS  LAW    OF    EVIDENCE    IN    CRIMINAL    CASES. 

of  a  slight  departure  on  the  part  of  the  trial  court  from  the  well 
recognized  instructions  previously  given,  as  to  what  constitutes 
reasonable  doubt.     The  court  employs  the  following  language  : 

"  'In  law  a  party  accused  of  crime  is  presumed  to  be  innocent 
until  the  contrary  is  proven  beyond  a  reasonable  doubt.  If, 
therefore,  upon  a  consideration  of  all  the  evidence  in  this  cause 
you  entertain  a  reasonable  doubt  as  to  the  guilt  of  defendant  you 
will  arive  him  the  benefit  of  such  a  doubt  and  find  him  not 
guilty.  In  applying  the  rule  as  to  reasonable  doubt  you  will  be 
required  to  acquit  if  all  the  facts  and  circumstances  proven  can 
be  reasonably  reconciled  with  any  theory  other  than  that  the  de- 
fendant is  guilty;  or  to  express  the  same  idea  in  another  form,  if 
all  the  facts  and  circumstances  proven  before  you  can  be  as  rea- 
sonably reconciled  with  the  theory  that  the  defendant  is  innocent 
as  with  the  theory  that  he  is  guilty,  you  must  adopt  the  theory 
most  favorable  to  the  defendant,  and  return  a  verdict  finding  him 
not  guilty.  You  will  observe,  however,  that  the  doubt  to  author- 
ize an  acquittal  on  that  ground  alone  must,  as  stated,  be  reasonable 
and  must  be  also  one  fairly  deducible  from  the  evidence  consid- 
ered as  a  whole.' 

"The  mere  possibility  that  the  defendant  may  be  innocent  will 
not  authorize  an  acquittal.  It  declares  very  properly  'that  one 
accused  of  crime  is  presumed  to  be  innocent  until  the  contrary  is 
proven  beyond  a  reasonable  doubt.  If  therefore,  upon  a  consid- 
eration of  all  the  evidence  in  this  case  you  entertain  a  reasonable 
doubt  of  the  guilt  of  the  defendant,  you  will  give  him  the  benefit 
of  such  doubt  and  find  him  not  guilty.  ...  In  applying  the 
rule  as  to  reasonable  doubt  you  will  be  required  to  acquit  if  all 
the  facts  and  circumstances  proven  can  be  as  reasonably  reconciled 
with  the  theory  that  the  defendant  is  innocent  as  with  the  theory 
that  he  is  guilty;  you  must  accept  the  theory  most  favorable  to 
the  defendant  and  render  a  verdict  finding  him  not  guilty.'  This 
attempted  explanation  of  the  term  'reasonable  doubt'  would  elim- 
inate it  from  the  criminal  code,  and  leave  juries  to  find  verdicts  in 
criminal  cases  upon  the  mere  preponderance  of  the  evidence.  By 
that  explanation  the  benefit  of  a  reasonable  doubt  in  criminal 
-  is  no  more  than  the  advantage  a  defendant  has  in  a  civil 
case.  The  doctrine  expressed  in  this  explanation  is  exactly  that 
which  is  applicable  in  a  civil  action,  in  which,  if  the  facts  proven 
can  be  reasonably  reconciled  with  the  theory  that  the  defendant 


REASONABLE    DOUUT.  439 

owes  what  he  is  sued  for  as  that  he  does  not,  the  defendant  is 
entitled  to  a  verdict.  The  plaintiff  must  make  out  his  case  and  if 
the  evidence  is  evenly  balanced  he  cannot  recover."  State  v. 
Shaeffer,  SO  Mo.  282. 

§  272.  Extended  Citation  of  Authorities.— Innumerable 
decisions  illustrate  the  attitude  of  the  American  judiciary 
towards  this  important  subject.  Our  criminal  annals  contain 
many  expositions  of  the  governing  rule.  And  still  with  all  this 
reiterated  announcement  of  what  that  rule  embodies  and  with 
solemn  and  oracular  warnings  of  what  fatal  results  follow  its  want 
of  observance,  it  is  a  frequent  spectacle  to  see  the  convictions  of 
undoubted  criminals  set  aside,  justice  frustrated,  law  brought 
into  disrepute,  because  of  attempted  innovations  upon  the  phrase- 
ology of  the  rule  regarding  reasonable  doubt. 

There  is  but  little  difficulty  in  the  application  of  this  rule  when 
once  its  formula  is  cordially  accepted  and  the  court  ceases  to 
struggle  for  originality  in  cases  where  precedent  should  alone 
govern.  Very  deliberate  consideration  is  required  in  order  to 
reach  this  desired  formula  and  a  statutory  definition  is  perhaps 
the  most  effective  evasion  of  the  discordant  syntax  of  the  present 
embarrassment.  As  indicating  the  present  contradiction  that  pre- 
vails in  this  mere  matter  of  definition  we  will  cite  a  formidable 
array  of  authority  collected  from  both  the  Federal  and  state  de- 
cisions. 

Kennedy  v.  People,  40  111.  4SS;  Howard  F.  &  M.  Ins.  Go.  v. 
Corniek,  24  111.  455;  Springdale  Cemetery  Asso.  v.  Smith.,  24  111. 
480;  Pate  v.  People,  8  111.  661;  Warren  v.  Dickson,  27  111.  115; 
State  v.  Kearley,  26  Kan.  77;  Miles  v.  United  States,  103  U.  S. 
31)4,  26  L.  ed.  481;  McKleroy  v.  State,  77  Ala.  95;  Hamilton  v. 
People,  29  Mich.  194;  People  v.  Steubenvoll,  62  Mich.  329,  8 
Crim.  L.  Mag.  265;  Com.  v.  Tuttle,  12  Gush.  502;  Com.  v.  Cobb, 
14  Gray,  57;  Bramlette  v.  State,  21  Tex.  App.  611,  57  Am.  Rep. 
622;  Schultz  v.  State,  20  Tex.  App.  316;  State  v.  Dineen,  10 
Minn.  4<>S;  State  v.  Nelson,  11  Kev.  331;  People  v.  P/iipps,  39 
Cal.  326;  People  v.  Padillia,  42  Cal.  536;  Com.  v.  CosUey,  118 
Mass.  1;  State  v.  Vansant,  80  Mo.  67;  Dunn  v.  People,  109  111. 
■635;  Sullivan  v.  State,  52  Ind.  309;  State  v.  P'r  roe,  65  Iowa,  89; 
Munich  v.  People,  8  Colo.  454;  James  v.  State,  45  Miss.  572; 
People  v.  Ashe,  44  Cal.  288;  State  v.  Bridges,  2!)  Kan.  138;  State 
v.  Hayden,  45  Iowa,   17;  Polin  v.  State,  14  Neb.   540;     United 


440  LAW    OF    EVIDENCE    IN    CRIMINAL   CASES. 

Stales  v.  Jackson,  29  Fed.  Kep.  503;  Jane  v.  Com.  2  Met.  (Ky.) 
30;  State  v.  Oscar,  52  N.  C.  305;  Ray  v.  State,  50  Ala.  104; 
Bradley  v.  -State,  31  Ind.  492;  State  v.  Crawford,  34  Mo.  200; 
Garfield  v.  -State,  74  Ind.  60;  -Sta?^  v.  -State,  90  Ind.  1;  Connag- 
han  v.  People,  88  111.  460;  United  States  v.  Johnson,  26  Fed. 
Eep.  682;  -State  v.  Rounds,  76  Me.  123;  -State  v.  Reed,  62  Me- 
192;  Blocker  v.  -State,  9  Tex.  App.  279;  State  v.  Ostrander,  18 
Iowa,  437;  J/ay  v-  People,  60  in-  119;  J^Kfor  v.  People,  39  111. 
457;  State  v.  67ee,  85  Mo.  647;  Com.  v.  6Wy,  2  Brewst.  404; 
Cicely  v.  -State,  13  Smedes  &  M.  202;  Me  Quire  v.  People,  44 
Mich.  286,  38  Am.  Rep.  265;  Bray  v.  tftate,  41  Tex.  560;  State 
v.  0wera«,  79  Mo.  620;  -State  v.  Smith,  21  Mo.  App.  595;  People 
v.  Zmtey,  38  Mich.  482;  McMeen  v.  Cbm.  114  Pa.  300;  Donnelly 
v.  -State,  26  N.  J.  L.  602;  State  v.  ^1A  Zee,  7  Or.  237;  United 
States  v.  Foulke,  6  McLean,  349;  McElven  v.  -State,  30  Ga.  869; 
Zteteft  v.  -State,  20  Neb.  492,  57  Am.  Eep.  835;  People  v.  Davis, 
64  Cal.  440;  -State  v.  Willingham,  33  La.  Ann.  537;  Bressler  v. 
People,  117  111.  422;  Sumrier  v.  -State,  5  Black!  579,  36  Am. 
Dec.  561;  Leigh  v.  People,  113  111.  372;  Com.  v.  Zw&,  9  Met. 
93,  43  Am.  Dec.  373;  Mullins  v.  People,  110  111.  42;  Marion  v. 
-State,  16  Neb.  349;  Brady  v.  Om.  11  Bush,  282;  Davis  v.  Peo- 
ple, 114  111.  86;  -State  v.  Garland,  90  N.  C.  668;  -State  v.  TO&s, 
63  N.  C.  26;  Pe^te  v.  Rodrigo,  69  Cal.  601;  People  v.  McCann, 
16  N.  Y.  58,  69  Am.  Dec.  642;  Com.  v.  Leonard,  140  Mass.  473, 
54  Am.  Rep.  485;  -State  v.  Buckley,  40  Conn.  246;  Powers  v. 
-State,  87  Ind.  145;  lludelsonv.  State,  94  Ind.  420,  48  Am.  Rep. 
171;  O'JVeilv.  State,  48  Ga.  6Q-,  Adams  v.  -State,  29  Ohio  St.  412;. 
Stitz  v.  -State,  104  Ind.  359;  State  v.  Witt,  34  Kan.  488;  Com.  v. 
Tucy,  8  Cush.  1. 


CHAPTER  XXXVII. 

EVIDENCE  OF  MALICE,  MOTIVE,  PREMEDITATION  AND  INTENT. 

§  273.  Malice  Defiant. 

274.  May  be  Expressed  or  Implied. 

275.  How  Proved. 

27G.  Burden  of  Proof  as  to. 

277.  Intoxication  as  Affecting  Malice. 

278.  Legal  Significance  of  the  Term  "Motive.''* 

279.  Term  "Motive"  Defined. 

280.  Collateral  Fads  in  Relation  to  Motive. 

281.  Any  Proof  Suggesting  Mat  ice  is  Relevant. 

282.  What  is  Implied  by  the  Term  "Premeditation" 

283.  Wide  Range  of  the  Evidence  as  to  Premeditation. 

284.  Statement  of  the  Rule  as  to  Criminal  Intent. 

285.  Intent,  how  Proved. 

286.  Presumption  as  to. 

287.  Prosecution  may  Show  Evil  Intent. 

288.  Accused  may  Testify  as  to  his  Intent. 

289.  Digest  Form  of  the  Present  Rule. 

290.  Wlien  Conviction  may  be  Had  in  the  Absence  of  Criminal 

Intent. 

291.  Time  not  Necessary  to  Form  Criminal  Intent. 

292.  Review  of  the  Authorities. 

§  273.  Malice  Defined. — Malice  in  legal  contemplation  signifies 
a  wrongful  act  perpetrated  without  reasonable  cause  and  the 
intention  with  which  the  act  is  done  is  an  inference  of  law  based 
upon  a  well  known  presumption  that  the  man  shall  be  regarded  as 
intending  the  legitimate  results  of  his  act.  United  States  v.  Cof- 
fin, 1  Sumn.  394;  Maynard  v.  Fireman's  Fund  Ins.  Co.  34  Cal. 
48,  91  Am.  Dec.  672;  Wiejgin  v.  Coffin,  3  Story,  7;  People  v. 
Taylor,  36  Cal.  255;  Woiiey  v.  State,  11  Humph.  172;  Ha  ins  v. 
State,  58  Ga.  35;  Williams  v.  State,  3  Tex.  App.  31(1;  Beauchamp 
v.  State,  6  Blackf.  299;  Plasters  v.  State,  1  Tex.  App.  673;  Los- 
sen  v.  State,  62  Ind.  437;  McCoy  v.  State,  25  Tex.  3:5,  78  Am. 
Dec.  520;  State  v.  Hays,  23  Mo.  287;  Lander  v.  State,  12  Tex. 
462;   Com.  v.  Oooehviu,   122   .Mass.  19;   Com.  v.  Green,  1  Ashuu. 

441 


412  LAW    OF    EVIDENCE    IN    CRIMINAL    CASES. 

289;  State  v.  Town,  Wright  (Ohio)  75;  United  States  v.  Taylor, 

2  Sumn.  586;  Reg.  v.  Selten,'ll  Cox,  C.  C.  674;  Blunt  v.  Little, 

3  Mason,  102;  i?ea>  v.  Philp,  1  Moody,  C.  C.  264;  United  States 
v.  Outerbridge,  5  Sawy.  620;  Bromage  v.  Prosser,  4  Barn.  &  C. 
247.  See  also  1  Russell,  Crimes  (9th  ed.)  667;  1  Whart.  Am. 
Crim.  L.  (8th  ed.)  §§  L06,  122;  1  Bishop,  Crim.  L.  (6th  ed.)  429; 

4  Bl.  Com.  190;  1  Archb.  Crim.  Pr.  &  PL  368. 

§  274.  May  be  Expressed  or  Implied. — Actual  proof  of  inten- 
tion is  not  always  needed.  Malice,  the  essence  of  all  crime,  may 
be  expressed  or  implied.  Brown  v.  Com.  76  Pa.  319.  Nor  is  it 
indispensable  to  a  conviction  that  a  motive  be  proved.  People  v. 
Robinson,  1  Park.  Crim.  Kep.  649;  State  v.Lapage,  57  N.  H.  245, 
2 1  Am.  Kep.  69. 

§  275.  How  Proved. — "Malice  is  proved  in  the  same  manner 
as  intent — from  the  admissions  or  the  overt  acts  of  the  offender. 
It  may  generally  be  inferred  from  the  nature  of  the  act  itself. 
If  a  man  do  an  act  which  cannot  be  of  any  benefit  to  himself  or 
to  those  with  or  for  whom  he  is  acting,  and  which  must  neces- 
sarily be  of  injury  to  another  person,  .  .  .  the  jury  will  be 
warranted  in  inferring  that  the  act  was  done  from  malice  to  the 
owner  or  party  injured. 

"Malice  may  also  be  implied  where  no  malice  against  any  par- 
ticular person  in  fact  existed.  Even  in  murder,  which  is  the 
highest  offense  of  this  class,  in  which  malice  forms  a  most  mate- 
rial ingredient,  and  where  the  malice  must  be  preconceived, 
malice  may  in  this  way  be  implied,  although  none  actually  existed 
as  against  any  particular  person.  .  .  .  So  where  a  person  tires 
a  loaded  pistol  among  an  assembly  of  persons,  or  in  the  public 
streets  where  many  persons  are  passing,  and  thereby  kills  a  man, 
or  the  like,  he  is  guilty  of  murder.  So,  in  all  other  cases  where 
a  man  willfully  does  an  act  which  he  knows  must,  or  probably 
will,  cause  the  death  of  another  whom  he  knows  not,  and  a  man 
is  thereby  killed,  he  is  guilty  of  murder,  in  the  same  manner  as  if 
he  bad  preci  >ncei\  ed  malice  against  the  individual  killed."  Archb. 
Crim.  Pr.  &  PL  chap.  4,  p.  121. 

So  malice  may  be  proved  by  direct  evidence,  such  as  prior 
threats,  or  seeking  an  opportunity  to  perpetrate  the  act.  This  is 
called  express  malice,  and  proof  of  such  malice  in  this  case  would 
be  evidence  of  premeditation,  and  would  make  the  case  murder 
in  the  first  degree,  if  otherwise  made  out  beyond  a  reasonable 


EVIDENCE    OF    MALICE,  MOTIVE,  PREMEDITATION    AND    INTENT.    443 

■doubt.  Malice  may  also  be  implied  from  the  act  of  killing,  as  if 
the  killing  is  done  purposely  and  without  justification,  legal  excuse 
or  reasonable  provocation.  And  if  the  act  is  perpetrated  with  a 
deadly  weapon  so  used  as  to  be  likely  to  produce  death,  the  pur- 
pose to  kill  may  be  inferred  from  the  act.  Boyle  v.  /State,  105 
Ind.  469,  55  Am.  Hep.  218. 

When  the  scienter  or  quo  animo  becomes  an  essential  factor  in 
the  problem  of  guilt  or  innocence  to  be  solved,  when  proof  of 
malice  becomes  indispensable  to  a  conviction,  such  evidence  of 
other  like  acts  may  then  be  competent.  Whart.  Am.  Crim.  L. 
649.  It  is  so  when  proof  of  the  motive  becomes  peculiarly  mate- 
rial on  account  of  some  peculiarity  of  the  crime,  or  its  dependence 
•on  some  peculiar  motive,  when  the  act  is  innocent  as  a  rule,  and 
its  criminality  the  exception.  State  v.  Lajpage,  57  N.  H.  245,  24 
Am.  Pwep.  69. 

§  276.  Burden  of  Proof  as  to. — Where  the  commission  of  a 
homicide  by  the  defendant  is  proved,  the  law  presumes  it  to  have 
"been  done  with  malice,  and  the  burden  of  proving  circumstances 
of  mitigation,  or  that  justify  or  excuse  it,  devolve  upon  him, 
unless  the  proof  on  the  part  of  the  prosecution  tends  to  show  that 
it  only  amounted  to  manslaughter,  or  that  the  defendant  was  jus- 
tifiable or  excusable.  People  v.  Bush,  71  Cal.  602;  Thomas  v. 
People,  67  N.  Y.  218;  State  v.  Lautenschlager,  22  Minn.  514; 
Meyers  v.  Com.  83  Pa.  131;  State  v.  Zeibart,  40  Iowa,  169. 

§  277.  Intoxication  as  Affecting  Malice. — In  State  v.  John- 
son, 40  Conn.  136,  to  convict  of  murder  in  the  first  degree  it  was 
necessary  to  show  willful,  deliberate  intent  and  actual  malice. 
The  court  said:  "But  the  real  question  is,  whether  drunkenness, 
as  a  fact,  may  be  considered  by  the  jury  as  evidence  tending  to 
disprove  an  essential  fact  in  the  case,  a  deliberate  intention  to 
take  life."  Upon  the  question  of  malice,  ''the  state  of  the  prison- 
er's mind  is  material.  In  behalf  of  the  defense,  insanity,  intoxi- 
cation or  any  other  fact  which  tends  to  prove  that  the  prisoner 
was  incapable  of  deliberation,  was  competent  evidence  for  the 
jury  to  weigh.  Intoxication  is  admissible  in  such  cases,  not  as  an 
excuse  for  crime,  not  in  mitigation  of  punishment,  but  as  tending 
to  show  that  the  less  and  not  the  greater  offense  was  in  fact  com- 
mitted.'" Lancaster  v.  State,  2  Leigh,  575,  3  Am.  Crim.  Rep.  160, 
note. 

If  defendant  was  at  the  time  of  committing  the  act  intoxicated, 


444  LAW    OF    EVIDENCE    IN    CRIMINAL    CASES. 

the  jury  will  consider  that  fact  as  an  evidence  tending  to  show  an 
abBence  of  premeditation  or  deliberation.  New  York  Code  Crira. 
Proc.  title  1,  p.  5,  §  22;  1  Whart.  Am.  Crim.  L.  §  41;  Halle  v. 
State,  11  Humph.  154;  Com.  v.  Jones,  1  Leigh.  598;  PiHle  v. 
State,  9  Humph.  003;  Swan  v.  State,  4  Humph.  136;  Boswell  v. 
Com.  20  Gratt.  860;  Lancaster  v.  State,  2  Lea,  575;  Schlencker 
v.  State,  9  Neb.  241;  People  v.  Rogers,  18  N.  Y.  9,  72  Am.  Dec. 
484;  People  v.  Belencia,  21  Cal.  544;  Ferrell  v.  /State,  43  Tex. 
503;  CbZfctfA  v.  State,  2  Tex.  App.  391;  Whart.  Horn.  §  587,  et 
S( '/.:  Com.  v.  Dorsey,  103  Mass.  412;  Kelly  v.  CW.  1  Grant,  Cas. 
484;  Keenan  v.  Com.  44  Pa.  55,  84  Am.  Dec.  414;  Jones  v.  Com. 
75  Pa.  403;  State  v.  Johnson,*®  Conn.  136;  People  v.  TTOiaww, 43- 
Cal.  344;  Pigman  v.  State,  14  Ohio,  555,  45  Am.  Dec.  558;  Peo- 
ple v.  Ferris,  55  Cal.  588;  People  v.  Harris,  29  Cal.  678;  People 
v.  Batting,  49  How.  Pr.  392;  Flanigan  v.  Pt^te,  86  N.  Y.  554, 
40  Am.  Rep.  556.  If  defendant,  at  the  time  of  committing  the 
act,  was  in  a  state  of  mental  confusion,  of  which  drink  was  the 
cause,  the  jury  will  consider  the  same  as  evidence  tending  to  show 
that  there  was  no  specific  intent  to  take  life,  or  that  there  was  no 
p<  »sitive  premeditation.  Whart.  &  S.  Medical  Jurisprudence,  §  70, 
note  s.;  Whart.  Horn.  371. 

A  refusal  to  charge  on  a  trial  for  murder,  that  intoxication 
absolutely  tends  to  show  absence  of  premeditation  and  deliberation 
is  not  error.     People  v.  Mills,  98  N.  Y.  176. 

§  278.  Legal  Significance  of  the  Term  "Motive."— The  law 
recognizes  the  principle  that  men  are  impelled  to  commit  crimes 
from  some  motive.  There  are,  indeed,  few  motiveless  crimes,  and 
among  the  motives  impelling  men  to  crime  is  that  of  gain.  In  a 
thoughtful  and  philosophical  treatise  it  is  said:  "As  there  must 
pre-exist  a  motive  to  every  voluntary  action  of  a  rational  being, 
it  is  proper  to  comprise  in  the  class  of  moral  indications  such  par- 
ticulars of  external  relation  as  are  usually  observed  to  operate  as 
inducements  to  commission  of  crime"  and  among;  the  motives  that 
influence  human  conduct  this  author  classes  that  of  gain.  Wills,. 
Circ.  Ev.  39. 

Another  author  says:  "In  looking  at  the  motives  which  insti- 
gate human  conduct,  we  ascend  to  the  very  origin  of  crime." 
Burrill,  Circ.  Ev.  281.  At  another  place  this  author  says:  "The 
motive  of  gain,  in  the  stricter  sense  of  the  term,  may  be  excited 
by  two  different  classes  of  objects,  first,  by  something  visible  and 


EVIDENCE    OF    MALICE,  MOTIVE,  PREMEDITATION    AND    INTENT.    445 

tangible,  which  the  party  meditating  the  crime  desires  to  possess; 
and,  secondly,  by  some  substantial  benefit  which  is  expected  to 
accrue  as  the  result  of  the  contemplated  act."  Burrill,  Circ.  Ev. 
285. 

The  case  of  State  v.  Colin,  9  Nev.  179,  supplies  an  illustration 
of  the  practical  application  of  these  principles.  In  that  case  the 
appellant  was  charged  with  arson,  and  it  was  held  that  evidence 
of  over-large  insurance  upon  his  goods  was  competent  "to  show  a 
possible  or  probable  motive,  such  motive  being  a  material  link  in 
the  chain  of  circumstances."  In  the  course  of  the  opinion  in  that 
case  it  was  said:  "Now,  it  is  not  a  natural  thing  for  a  man  to  tire 
his  own  premises;  presumptively  appellant  was  innocent.  What 
then  is  the  logical  and  natural  course  of  human  thought  at  such  a 
juncture?  Is  it  not  to  inquire  what  motive,  if  any,  existed  which 
could  have  influenced  a  sane  person  to  do  such  an  act?  Such  was 
the  course  pursued  by  the  prosecution,  the  motive  was  sought,  and 
by  it  claimed  to  be  found  in  the  fact  of  an  undue  insurance;  not 
only  a  perfectly  proper  proceeding,  but  indeed  the  only  one  open." 
The  same  principle  is  declared  in  Com.  v.  Hudson,  97  Mass.  565, 
and  in  Shepherd  v.Peoph  .  1!>  X.  Y.  537.  In  this  last  case  Denio, 
■/.,  speaking  for  the  court,  said:  "The  prisoner's  house  had  been 
burned  and  he  was  charged,  upon  circumstantial  evidence,  with 
having  set  it  on  lire.  Prima  facie  he  had  no  motive  for  the  act, 
but  a  strong  pecuniary  one  against  it.  But  if  he  had  a  contract 
of  indemnity,  and  especially  if  under  it  he  might  probably  obtain 
more  than  the  value  of  the  property,  the  case  would  be  quite  dif- 
ferent." 

Mr.  Bishop  says:  "Evidence  that  the  insurance  was  for  more 
than  the  worth  of  the  building  is  pertinent;  also,  that  the  defend- 
ant attempted  to  procure  payment  of  what  was  thus  excessive." 
2  Bishop,  Crim.  Proc.  §  50.  These  cases  are  in  harmony  with  the 
general  rule  which  that  author  thus  states:  "Hence  proof  of 
motive  is  never  indispensable  to  a  conviction.  But  it  is  always 
competent  against  the  defendant."  1  Bishop,  Crim.  Proc.  §  1107; 
Wills,  Circ.  Ev.  41;  Goodwin  v.  State,  96  Ind.  550,  560. 

While  it  is  competent  to  prove  facts  tending  to  show  an  evil 
motive,  yet  such  facts  are  always  susceptible  of  explanation. 
Motive  is  but  a  circumstance,  and  it  is  always  proper  to  explain 
the  act  which  is  adduced  as  evidence  of  a  wicked  motive. 

§  279.  Term  "Motive"  Defined. — "Motive  is  an  inducement, 


446  LAW    OF    EVIDENCE    IN    CRIMINAL    CASES. 

or  that  which  leads  or  tempts  the  mind  to  indulge  the  criminal 
act.  It  is  resorted  to  as  a  means  of  arriving  at  an  ultimate  fact, 
not  for  the  purpose  of  explaining  the  reason  of  a  criminal  actr 
which  has  heen  clearly  proved,  but  from  the  important  aid  it 
may  render  in  completing  the  proof  of  the  commission  of  the  act 
when  it  might  otherwise  remain  in  doubt.  With  motives,  in  any 
speculative  sense,  neither  the  law  nor  the  tribunal  which  admin- 
isters it,  has  any  concern.  It  is  in  cases  of  proof  by  circumstan- 
tial evidence  that  the  motive  often  becomes  not  only  material, 
but  controlling,  and  in  such  cases  the  fact  from  which  it  may  be 
inferred  must  be  proved.  It  cannot  be  imagined  any  more  than 
any  other  circumstance  in  the  case."  Church,  Ch.  J.,  in  People 
v.  Bennett,  49  N.  Y.  137. 

In  criminal  prosecutions  it  is  always  competent  for  the  state's 
attorney  to  show  that  the  motive  for  the  offense  was  the  hope  of 
gain.     Kennedy  v.  People,  39  N.  Y.  245. 

§  280.  Collateral  Facts  in  Relation  to  Motive. — "Evidence 
of  collateral  facts  which  may  appear  to  have  presented  a  motive 
for  a  particular  action  deserves  per  se  no  weight.  With  motives 
merely  the  legislator  and  the  magistrate  have  nothing  to  do;, 
actions,  as  the  objects  or  results  'of  motives,  are  the  only  legiti- 
mately cognizable  subjects  of  human  law.  Actus  non  facit  reum 
nisi  mens  sit  rea  is  a  maxim  of  reason  and  justice  not  less  than  of 
positive  law.  Motives  and  their  objects  differ,  it  has  been  re- 
marked, as  the  springs  and  wheels  of  a  watch  differ  from  the 
pointing  of  the  hour,  being  mutually  related  in  like  manner. 
But  such  evidence  is  most  pertinent  and  important  when  clearly 
connected  with  declarations  which  demonstrate  that  the  particu- 
lar motive  has  passed  into  action,  or  with  inculpatory  moral  facts 
which  it  tends  to  explain  and  co-ordinate,  and  which  would  oth- 
erwise be  inexplicable."     Wills,  Circ.  Ev.  42. 

"On  a  late  trial  for  murder,  Lord  Chief  Justice  Campbell  thus 
summed  up  the  doctrine  under  discussion  :  'With  respect  to  the 
alleged  motive,  it  is  of  great  importance  to  see  whether  there  was 
a  motive  for  committing  such  a  crime,  or  whether  there  was  not;. 
or  whether  there  is  an  improbability  of  its  having  been  commit- 
ted, so  strong  as  not  to  be  empowered  by  positive  evidence.  But 
if  there  be  any  motive  which  can  be  assigned,  I  am  bound  to  tell 
you  that  the  adequacy  of  that  motive  is  of  little  importance.  We 
know,   from   the   experience   of    criminal   courts,  that  atrocious- 


EVIDENCE    OF    MALICE,  MOTIVE,  PKEMEDITATION    AND    INTENT.    447 

crimes  of  this  sort  have  been  committed  from  very  slight  motives; 
not  merely  from  malice  and  revenge,  but  to  gain  a  small  pecuni- 
ary advantage,  and  to  drive  off  for  a  time  pressing  difficulties.' " 
Wills,  Circ.  Ev.  44. 

§  281.  Any  Proof  Suggesting  Motive  is  Relevant.— Proof 

tending  to  show  that  the  deceased  had  money,  suggests  a  motive 
for  committing  a  robbery,  and  so  a  motive  to  take  the  life  of  the 
deceased,  if  that  would  facilitate  the  theft,  or  contribute  to  its- 
concealment.  Such  a  fact  formed  a  prominent  circumstance, 
tending  to  the  conviction  of  the  prisoner,  in  Gordon  v.  People^ 
33  N.  Y.  501,  and  was  not  suggested  as  of  doubtful  admissibility 
in  that  case,  and  the  court,  in  Hendrickson  v.  People,  10  N.  Y. 
1.3,  went  much  further  in  sustaining  the  admission  of  evidence, 
tending,  as  was  claimed,  to  show  a  motive  for  the  commission  of 
the  crime  charged,  by  receiving  the  testimony,  which,  at  must, 
only  showed  that  the  prisoner  had  a  diminished  interest  in  the 
continuance  of  his  wife's  life.  It  is  always  a  just  argument,  on 
behalf  of  one  accused,  that  there  is  no  apparent  motive  to  the 
perpetration  of  the  crime.  Men  do  not  act  wholly  without  mo- 
tive. On  the  other  hand,  proof  of  motive  tends,  in  some  degree, 
to  render  the  act  so  far  probable  as  to  weaken  presumptions  of 
innocence,  and  corroborate  evidence  of  guilt. 

§  282.  What  is  Implied  by  the  Term  "Premeditation."— 

Premeditation  implies  beforehand,  or  previous  deliberation,  and 
while  all  this  must  transpire  before  the  fatal  act,  by  some  appre- 
ciable space  of  time,  yet  no  particular  length  of  time  is  required. 
If  there  be  time  for  choice  as  the  result  of  reflection  that  is  suffi- 
cient. The  mental  processes  are  so  swift  that  premeditation  may 
be  found  to  exist  within  the  very  shortest  time.  United  States 
v.  King,  34  Fed.  Rep.  302. 

Premeditation  differs  essentially  from  will,  which  constitutes 
crime,  because  it  supposes,  besides  an  actual  will,  a  deliberat  i<  »n 
and  a  continued  persistence  which  indicates  mere  perversity. 
Bouvier,  Law  Diet,  title  Premeditation. 

"Willful,  deliberate  and  premeditated,  are  merely  cumulative 
and  expressive  of  the  same  idea  {People  v.  Pool,  27  Cal.  5 72. 
See  McDaniel  v.  State,  8  Smedes  &  M.  401,  47  Am.  Dec.  93), 
and  standing  in  the  relation  to  the  offense  of  murder  is  a  conclu- 
sion of  law  drawn  from  certain  facts.  People  v.  Jacinto  Aro,  6 
Cal.  207;  State  v.  Crosier,  12  Nov.  300;  Judge  v.  State,  58  Ala. 


44:8  LAW    OF    EVIDENCE    IN    CRIMINAL   CASES. 

406;  King  v.  Com.  2  Ya.  Cas.  78;  Rex  v.  Shaw,  6  Car.  &  P.  372. 
But  premeditation  will  not  be  implied  from  the  use  of  a  deadly 
weapon.     Clark  v.  State,  8  Humph.  671. 

ISo  appreciable  time  need  intervene  between  the  premeditated 
intent  and  the  homicidal  act.  People  v.  Nichol,  34  Cal.  211; 
People  v.  Williams,  24  Cal.  31,  43  Cal.  344;  Miller  v.  State,  54 
Ala.  155;  Jones  v.  Com.  75  Pa.  403,  1  Am.  Crim.  liep.  262;  Peo- 
ple v.  Cotta,  4'.'  Cal.  L69;  Halbert  v.  State,  3  Tex.  App.  656;  State 
v.  Z>wm,  18  Mo.  419;  Green  v.  State,  13  Mo.  382;  State  v.  Hays, 
23  Mo.  287;  State  v.  Garrand,  5  Or.  216;  ,S7«te  v.  Hohnes,  54 
Mo.  153;  People  v.  Bealoba,  17  Cal.  389;  State  v.  Johnson,  8 
Iowa,  525,  overruling  Fonts  v.  State,  4  CI.  Greene,  500.  See 
Com.  v.  £ra^,  1  Ashm.  289;  State  v.  Millain,  3  New  409;  Zero's 
v.  State,  3  Head,  127;  and  see  Bmns  v.  State,  66  Ind.  433;  Bean- 
champ  v.  State,  0  Blackf.  299;  Fahnestock  v.  State,  23  Ind.  231; 
ffi  i  mm  v.  <%//'.  44  Pa.  55,  84  Am.  Dec.  414;  McKenzie  v.  State, 
26  Ark.  334;  State  v.  Jennings,  18  Mo.  435;  Z>«<  M<  v.  State,  1  Tex. 
App.  159;  Wright  v.  />W//>,  22  Gratt.  880.  A  momentary  de- 
liberation may  suffice.  Duebbe  v.  State,  supra.  The  reflection 
and  premeditation  may  take  place  even  at  the  moment  of  com- 
mitting the  act,  and,  like  any  other  fact,  may  be  proved  by  cir- 
cumstances which  exclude  every  reasonable  doubt.  Whiteford 
v.  Com.  6  Rand.  (Ya.)  722;  Com.  v.  Jones,  1  Leigh,  611;  People 
v.  Clark,  7  K  Y.  385;  Com.  v.  York,  9  Met.  93,  43  Am.  Dec. 
373;  Shoemaker  v.  State,  12  Ohio,  43;  PeopU  v.  Freel,  48  Cal. 
436;  O'Brien  v.  People,  -^  Barb.  274:  State  V.  ZV>m,  IS  Mo. 
419;  State  v.  Holme,  54  Mo.  153;  State  v.  Johnson,  8  Iowa,  525, 
74  Am.  Dec.  321;  Lewis  v.  State,  3  Head,  127;  DonneUan  v. 
Com.  7  Bush,  070;  State  v.  Ah  Lee,  8  Or.  214;  see  Burgess  v. 
Com.  2  Ya.  Cas.  488.;  Desty,  Am.  Crim.  L.  §  129  note  K. 

§  283.  Wide  Range  of  the  Evidence  as  to  Premedita- 
tion.— Premeditation  of  crime,  or  the  means  to  do  it  with,  may 
precede  the  bare  act  of  it  a  long  time.  Hence,  evidence  of  them 
ma}-  seem  to  take  a  wide  range  in  both  time  and  space.  Buying 
poison  may  be  shown,  or  stealing  it,  no  doubt,  with  burglary  and 
arson,  perhaps;  it  may  be  a  witness  of  a  former  crime,  or  ajjarti- 
eeps  criminis  liable  to  turn  state's  evidence,  who  is  put  out  of  the 
way;  prior  like  attempts  on  the  same  person  or  thing,  or  like 
crimes  on  other  persons,  Outstanding  in  similar  relations  and  giv- 
ing rise  to  the  same  motives;  sexual  crimes  or  acts    indicating  a 


EVIDENCE    OK    MALICE,  MOTIVE,  PREMEDITATION    AND    INTENT.    449 

■desire  of  change  in  marriage  relations — in  all  these  cases,  and 
many  more  found  in  the  books,  a  prior  crime  may  be  disclosed; 
but  in  all  of  them  this  disclosure  is  a  mere  incident,  not  an  ele- 
ment or  the  burden  of  the  evidence.  And  this  we  understand  to 
be  the  true  rule  and  spirit  of  all  the  authorities.  State  v.  Lapacje, 
57  N.  H.  245,  24  Am.  Rep.  69. 

§  284.  Statement  of  the  Rule  as  to  Criminal  Intent. — 
It  is  a  general  proposition  previously  adverted  to,  that  the  rules 
of  evidence  in  civil  cases  apply  with  equal  force  in  the  investiga- 
tion of  criminal  offenses;  but  in  such  investigation  many  rules  are 
in  vogue  which  are  not  recognized  in  civil  causes.  For  instance: 
"A  cardinal  doctrine  of  criminal  law  is,  that  it  is  the  intention 
with  which  an  act  is  done,  that  constitutes  its  criminality.  The 
intent  and  the  act  must  both  concur,  t<>  constitute  the  crime;  and, 
hence,  the  intent  must  be  proved,  like  the  other  material  facts  in 
the  case.  This  proof  may  be  either  by  evidence,  direct  or  indi- 
rect, tending  to  establish  the  fact,  or  by  an  inference  of  law,  from 
other  facts  proved.  Thus,  where  an  act,  in  itself  indifferent,  be- 
comes criminal,  if  done  with  a  particular  intent,  there  the  intent 
must  be  proved  and  found,  but,  if  the  act  is  in  itself  unlawful, 
the  law  implies  a  criminal  intent/'  Haines,  Justices  of  Peace, 
<;s7,  citing  3  Greenl.  Ev.  £  13. 

Guilty  knowledge,  or  guilty  intent,  is.  in  general,  an  essential 
element  in  crimes  at  common  law;  but,  whether  a  criminal  intent, 
or  a  guilty  knowledge,  is  a  necessary  ingredient  of  a  statutory 
offense  is  a  matter  of  construction,  to  be  determined  from  the 
language  of  the  statute,  in  view  of  its  manifest  purpose  and  de- 
sign.    Com.  v.  Weiss,  11  L.  11.  A.  530,  139  Pa.  247. 

§  285.  Intent,  how  Proved. — The  state  is  not  expected,  and 
cannot  be  required,  to  make  proof  of  felonious  intent,  as  a  fact, 
by  direct  and  positive  evidence;  for,  as  a  general  rule,  men  who 
do  or  commit  acts  which  the  law  denounces  as  public  offenses  do 
not  proclaim  in  public  places  the  intent  with  which  such  acts  are 
done.  If  the  state  were  required  to  make  direct  and  positive 
proof  of  the  felonious  intent  which  characterizes  the  act  done  as 
a  public  offense,  the  result  would  be  that  many  persons,  charged 
and  guilty  of  public  crimes,  would  go  acquitted,  "unwhipt  of 
justice."  Therefore  all  that  the  state;  is  required  to  do,  in  such 
cases,  is  to  introduce  such  evidence  on  the  trial  of  the  cause  as 
29 


450  LAW    OF   EVIDENCE   IN    CRIMINAL   CASES. 

will  satisfy  the  triers  of  the  facts,  whether  court  or  jury,  beyond 
a  reasonable  doubt,  not  only  that  the  act  was  done  by  the  defend- 
ant, but  that  it  was  done  with  the  felonious  intent  charged  in  the 
indictment.     Padgett  v.  State,  103  Ind.  550. 

AY  hen  it  is  necessary,  in  the  course  of  a  cause,  to  inquire  into 
the  nature  of  a  particular  act,  or  the  intention  of  the  person  who 
did  the  act,  proof  of  what  the  person  said  at  the  time  of  doing  it 
is  admissible  in  evidence  for  the  purpose  of  showing  its  true  char- 
acter. 1  Phil.  Ev.  (Gould's  ed.)  231.  But  to  render  the  declara- 
tion competent,  the  act  with  which  it  is  connected  should  be 
pertinent  to  the  issue;  for  where  the  act  is  in  its  own  nature  irrel- 
evant, and  when  the  declaration  is  per  se  incompetent,  the  union 
of  the  two  will  not  render  the  declaration  admissible.  Wright  v. 
Doe,  7  Ad.  &  El.  313. 

A  man's  intention  must  be  judged  by  his  acts  and  expressions; 
and  it  is  manifested  by  circumstances  that  vary  with  almost  every 
case  that  is  presented  for  consideration.  The  general  rule  to 
determine  what  he  intends  by  his  acts  is,  that  a  man  intends  that 
consequence  which  he  contemplates,  and  which  he  expects  to 
result  from  his  acts,  and  he  therefore  must  be  taken  to  intend 
every  consequence  which  is  the  natural  and  immediate  result  of 
any  act  which  he  voluntarily  does.  2  Stark.  Ev.  573;  State  v.  Da- 
vis, 38  K  J.  L.  176. 

§  286.  Presumption  as  to. — A  sane  man  must  be  presumed 
to  contemplate  and  intend  the  necessary,  natural  and  probable 
consequences  of  his  own  acts.  3  Greenl.  Ev.  §§  13,  14;  Bex  v. 
Farrington,  Kuss.  &  E.  207;  Com.  v.  Webster,  5  Cush.  305,  52 
Am.  Dec.  711.  But  when  the  intent  is  the  gist  of  the  crime,  this 
presumption,  though  a  very  important  circumstance  in  making 
the  proof  necessary  upon  this  point  to  convict,  is  not  conclusive 
nor  alone  sufficient,  and  should  be  supplemented  by  other  testi- 
mony to  avoid  a  reasonable  doubt.  People  v.  Sweeney,  55  Mich. 
586. 

"The  law  infers  an  intent  to  do  what  a  party  does  do.  If  I  come 
to  one  of  you  and  draw  a  pistol  and  shoot  you,  it  infers  that  I 
intended  t<>  kill  you,  if  you  die  from  the  wounds."  "Westbrook, 
J.,  in  People  v.  Batting,  49  How.  Pr.  392. 

Persons  of  sound  mind  and  discretion  must,  in  general,  be 
understood  to  intend,  in  the  ordinary  transactions  of  life,  that 
which  is  the  necessary  and  unavoidable  consequences  of  their  acts, 


EVIDENCE    OF    MALICE,  MOTIVE,  PREMEDITATION    AND    INTENT.    451 

as  they  are  supposed  to  know  what  the  consequences  of  their  acts 
will  be  in  such  transactions.  Experience  has  shown  the  rule  to 
be  a  sound  one  and  one  safe  to  be  applied  in  criminal  as  well  as 
civil  cases.  Exceptions  to  it  undoubtedly  may  arise,  as  where  the 
consequences  likely  to  flow  from  the  act  are  not  matters  of  com- 
mon knowledge,  or  where  the  act  or  the  consequence  flowing  from 
it  is  attended  by  circumstances  tending  to  rebut  the  ordinary  pro- 
bative force  of  the  act  or  to  exculpate  the  intent  of  the  agent. 
First  Nat.  Bank  of  Clarion  v.  Jones,  SS  U.  S.  21  Wall.  325,  22 
L.  ed.  542. 

It  often  occurs  in  human  experience  that  the  mere  fact  that  a 
particular  act  has  been  done  affords  the  best  evidence  of  the 
motive  or  intention  with  which  it  was  done.  State  v.  Teeter,  69 
Iowa,  717. 

This  rule  is  always  applied,  unless  from  the  circumstances  of 
the  case,  it  affirmatively  appears  that  the  will  of  the  actor  was 
subordinated  to  some  controlling  and  irresistible  cause  precluding 
the  existence  of  any  voluntary  mental  action.  In  Starkie  on  Evi- 
dence it  is  said,  "that  a  rational  agent  must  be  taken  to  contem- 
plate and  intend  the  natural  and  immediate  consequences  of  his 
own  act,  is  a  presumption  so  cogent  as  to  constitute  rather  a  rule 
of  law  than  of  mere  evidence."  Yol.  2,  p.  818.  "There  is  a  general 
presumption  in  criminal  matters  that  a  person  intends  whatever  is 
the  natural  and  probable  consequences  of  his  own  action."  1  Phil. 
Ev.  632.  It  was  said  by  Judge  Andrews  that  "it  is  a  fundamental 
rule  of  evidence  of  very  general  application,  founded  upon  obser- 
vation and  experience,  that  a  man  is  presumed  to  intend  the 
natural  consequences  of  his  act."    Foster  v.  People,  50  N.  Y.  609, 

§  287.  Prosecution  may  Show  Evil  Intent. — It  is  always 
competent  for  the  government  to  introduce  evidence  of  any  facts 
tending  directly  to  show  an  evil  intent,  or  from  which  such  evil 
intent  may  be  justly  and  reasonably  inferred;  but  all  proof  in 
relation  to  transactions  not  intimately  and  directly  connected  with 
the  particular  accusation  against  the  defendant,  or  with  the  evi- 
dence, or  in  necessary  explanation  of  the  evidence  introduced  in 
support  of  the  charge  contained  in  the  indictment,  is  irrelevant 
and  inadmissible.  Com.  v.  Tuckerrnan,  1<>  Gray,  L98.  Evidence 
should  have  a  peculiar  and  intimate,  if  not  also  an  inseparable 
connection  with,  and  tendency  to  explain  and  characterize,  the  act 
in  issue  charged  against  the  prisoner. 


452  LAW    OF    EVIDENCE    IN    CRIMINAL    CASES. 

So,  in  Com.  v.  Campbell,  7  Allen,  542,  it  was  held  that  such 
evidence  is  inadmissible  where  the  offense  charged  and  that  offered 
to  be  proved  are  distinct.  State  v.  Lapage,  57  N.  II.  245,  24  Am. 
Rep.  69. 

No  doubt,  where  guilty  knowledge  is  an  ingredient  of  the 
offense,  the  knowledge  must  be  found;  but  actual  positive  know- 
ledge is  not  usually  required.  In  many  cases,  to  require  this 
would  be  to  nullify  the  penal  laws.  The  case  of  knowingly  pass- 
ing counterfeit  money  is  an  illustration;  very  often  the  guilty 
party  has  no  actual  knowledge  of  the  spurious  character  of  the 
paper,  but  he  is  put  upon  his  guard  by  circumstances  which,  with 
felonious  intent,  he  disregards.  Another  illustration  is  the  case 
of  receiving  stolen  goods,  knowing  them  to  be  stolen;  the  guilt  is 
made  out  by  circumstances  which  fall  short  of  bringing  home  to 
the  defendant  actual  knowledge.  He  buys,  perhaps,  of  a  notori- 
ous thief,  under  circumstances  of  secrecy,  and  at  a  nominal  price, 
and  the  jury  rightfully  hold  that  these  circumstances  apprise  him 
that  a  felony  must  have  been  committed.  And  reins  v.  People, 
60  111.  354;  Schriedley  v.  State,  23  Ohio  St.  130;  Bunker  v.  Peo- 
ple, 37  Mich.  4. 

§  288.  Accused  may  Testify  as  to  his  Intent. — Much  of  the 
misconception  of  uncertainty  that  pervades  the  right  of  a  party 
to  testify  as  to  his  intent,  has  been  dispelled  by  a  late  decision  of 
the  New  York  court  of  appeals.  The  question  is  far  removed 
from  any  approach  to  certainty,  and  in  the  New  York  case,  three 
of  the  judges  are  recorded  as  dissenting.  Still,  the  majority  opin- 
ion written  by  that  eminent  jurist  who  is  now  the  chief  judge  of 
that  celebrated  court  must  be  regarded  as  tending  to  settle  a  con- 
troversy that  is  always  perplexing  and  quite  apt  to  result  in  gross 
injustice.  The  case  referred  to  is  that  of  People  v. Baker,  96  N. 
Y .  340.  The  extract  from  the  opinion  will  disclose  the  pertinency 
of  the  case  to  the  subject  we  are  endeavoring  to  illustrate. 

"The  defendant  as  a  witness  in  his  own  behalf  was  permitted 
to  ft  stify  that  he  did  not,  at  the  time  he  received  the  $575,  intend 
to  defraud  Meeker.  He  was  also  asked  this  question,  'Was  your 
intention  when  you  received  moneys  from  time  to  time  from 
Meeker,  to  defraud  him?'  That  was  objected  to  as  incompetent 
and  inadmissible,  and  the  objection  was  sustained.  As  the  intent 
with  which  those  moneys  were  received  was  one  of  the  material 
inquiries  he  should  have  been  permitted  to  show  that  he  did  not 


EVIDENCE    OF   MALICE,  MOTIVE,  PREMEDITATION    AND    INTENT.    453 

receive  them  with  any  fraudulent  intent.  The  case  went  to  the 
jury  in  such  a  way  as  to  enable  the  people  to  claim,  that  not  only 
the  $575  was  received  by  the  defendant  with  the  intent  to  defraud 
Meeker,  but  that  all  the  other  moneys  were  received  in  the  same 
way,  and  that  the  receipt  of  all  the  moneys  had  a  tendencv  to 
show  with  what  intent  the  $575  Mas  received;  and  hence  the 
defendant  clearly  had  the  right  to  show  that  he  had  no  fraudulent 
intent  in  receiving  any  of  it. 

"The  defendant,  after  answering  that  at  the  time  he  received  the 
$575  he  did  not  intend  to  defraud  Mei'ker,  was  also  asked  to  state 
his  intention  at  the  time  he  received  it.  and  the  question  was 
objected  to  on  the  part  of  the  people,  and  the  objection  was  sus- 
tained. AVe  think  that  ruling  was  also  erroneous.  Upon  the 
facts  of  the  case  as  they  were  developed  at  the  trial,  it  was  claimed 
by  the  defendant  that  when  he  received  the  s575  it  was  his  inten- 
tion to  replace  the  stock  to  respond  to  Meeker  whenever  called 
upon  for  the  stock,  and  that  he  was  at  the  time  able  to  do  so. 
That  was  a  theory  he  had  a  right  to  prove  if  he  could,  and  the 
proof  would  bear  upon  the  final  issue  whether  he  intended  to 
cheat  and  defraud  him,  and  hence  he  should  have  been  permitted 
to  answer  the  question. 

"  The  judge  charged  the  jury  as  follows  :  'If  yon  find  that  the 
defendant  made  the  representations  charged  in  the  indictment, 
and  that  they  were  false,  and  that  the  defendant  knew  they  were 
false  when  he  made  them,  then  the  law  presumes  the  fraudulent 
intent.'  That  portion  of  the  charge  was  objected  to  by  the  de- 
fendant and  we  think  the  exception  well  founded.  The  crime  of 
false  pretenses  is  not  made  out  by  simply  showing  that  the  repre- 
sentations charged  in  the  indictment  were  made,  and  that  they 
were  false,  and  that  the  defendant  knew  them  to  be  false.  The 
jury,  from  those  facts  and  from  all  the  other  facts,  may  infer  a 
fraudulent  intent;  but  the  law  does  not  presume  a  fraudulent  in- 
tent; that  is  to  be  found  as  a  fact  by  the  jury,  and  is  not  an  infer- 
ence of  law."' 

Judge  Thompson  says:  ''It  has  been  held,  on  the  trial  of  an 
indictment  for  an  assault  and  battery  with  intent  to  commit  a 
rape,  that  the  accused  might  testify  as  to  what  his  intention  was 
in  the  commission  of  the  assault  and  battery.  So,  on  the  trial  of 
an  indictment  for  larceny,  it  is  competent  for  the  defendant  to 
testify  as  to  what   his  intention  was  at   the  time  the  goods   came 


454:  LAW    Ob'    EVIDENCE    IN    CKIHIWAL    CASES. 

into  his  possession.  So,  where  the  question  concerns  the  intent 
with  which  an  assignment  of  property  has  been  made,  it  is  com- 
petent for  the  assignor  to  testify  what  his  intentions  were.  So, 
where  the  validity  of  a  deed,  or  of  an  official  act,  is  in  question,  it 
is  competent  for  the  grantor  to  testify  that  he  executed  it  in  good 
faith.  And  in  general,  it  may  be  stated  that,  where  the  intent  is 
an  essential  element  in  the  charge  of  crime,  the  prisoner  has  the 
right  to  testify  as  to  intent  in  doing  the  act.  Kor  is  it  necessary 
to  the  operation  of  the  rule  that  the  witness  should  be  a  party  to 
the  action.  More  broadly,  the  rule  is,  that  where  the  motive  of 
the  witness,  in  performing  a  particular  act  or  making  a  particular 
declaration,  becomes  a  material  issue  in  the  case,  or  reflects  im- 
portant light  upon  such  issue,  he  may  himself  be  sworn  in  regard 
to  it,  notwithstanding  the  difficulty  in  furnishing  contradictory 
evidence,  and  notwithstanding  the  diminished  credit  to  which  his 
testimony  may  be  entitled  as  coining  from  the  mouth  of  an  inter- 
ested party.  Some  courts,  however,  hold  that,  where  a  party 
takes  the  stand  as  a  witness  in  his  own  behalf  in  civil  and  crimi- 
nal cases,  it  is  incompetent  for  him  to  testify  as  to  an  uncommu- 
nicated  opinion,  belief  or  motive  on  which  he  acted.  It  is  clear 
that  a  part}-  cannot  be  allowed  to  testify  to  his  undisclosed  intent 
in  order  to  alter  the  effect  of  that  which  was  matter  of  contract, 
representation,  or  estoppel,  on  which  the  other  party  had  a  right 
to  rely. "  1  Thomp.  Trials,  §  383,  citing  Greer  v.  State,  53  Ind. 
420;  White  v.  State,  53  Ind.  595;  Watkins  v.  Wallace,  19  Mich. 
57;  Thacher  v.  Phinney,  1  Allen,  146;  Cortlandt  County  Snj>t. 
of  Poor  v.  Herkimer  County  Supt.  of  Poor,  44  N.  Y.  22;  Ker- 
rains  v.  7\  ople,  60  N.  Y.  221, 14  Am.  Rep.  158;  People  v.  Baker, 
96  X.  Y.  34o;  Seymour  v.  Wilson,  14  JN".  Y.  567;  Homans  v. 
Corning,  60  N.  II.  418;  MoKown  v.  Hunter,  30  X.  Y.  625; 
Starin  v.  Kelly,  88  N.  Y.  418;  Griffin  v.  Marquardt,  21  N".  Y. 
121;  Forbes  v.  Waller,  25  X.  Y.  430;  Columbus  v.  Z>ahn,36Ind. 
330;  Whizi  nant  v.  State,  71  Ala.  383;  Ford  v.  State,  71  Ala.  385; 
McCormick  v.  ,/<>*, j,/<,  77  Ala.  236. 

In  Forbes  v.  Waller,  supra,  it  was  held  proper  to  prove  by  the 
assignor  his  object  and  intent  in  making  the  assignment,  and  to 
prove  by  hitn  that  it  was  to  prevent  a  sacrifice  of  the  general 
principle  is  where  the  motive  of  a  witness  in  performing  a  partic- 
ular act  or  making  a  particular  declaration  becomes  a  material 
issue  in  a  cause,  or  reflects  important  light  upon  such  issue,  he 


EVIDENCE    OE   MALICE,  MOTIVE,  PREMEDITATION    AND    INTENT.    455 

may  himself  be  sworn  in  regard  to  it,  notwithstanding  the  diffi- 
culty of  furnishing  contradictory  evidence,  and  notwithstanding 
the  diminished  credit  to  which  his  testimony  may  be  entitled  as 
coming  from  the  mouth  of  an  interested  witness.  McKown  v. 
Hunter,  supra. 

§  289.  Digest  Form  of  the  Present  Rule. — In  digest  form 
•the  rule  would  tind  expression  in  this  language:  When  a  crimi- 
nal intent  is  imputed  to  a  person  or  forms  an  element  of  a  crime 
with  which  lie  is  charged,  he  is  privileged  to  deny  the  intent  when 
<on  examination  as  a  witness  in  his  own  behalf,  and  he  may  sup- 
port his  denial  of  this  criminal  intent  by  his  own  testimony  as  to 
the  alleged  offense.  Babcock  v.  People,  15  Hun,  347;  Wheelden 
v.  Wilson,  44  Me.  1;  Quimby  v.  Morrill,  47  Me.  470;  Snow  v. 
Paine,  114  Mass.  520;  White  v.  State,  53  Ind.  595;  People  v. 
Farrell,  31  Cal.  57G;  Bode  v.  State,  6  Tex.  App.  424;  Blodgett 
Paper  Co.  v.  Farmer,  41  IS".  H.  403;  Edwards  v.  Currier,  43 
Me.  474;  Shockey  v.  Mills,  U  Ind.  288,  36  Am.  Rep.  196;  White 
v.  Tucker,  16  Ohio  St.  468;  Jones  v.  Howland,  8  Met.  377,  41 
Am.  Dec.  525;  Lawton  v.  Chase,  108  Mass.  241;  Miner  v.  Phil- 
lips, 42  111.  123;  Watkins  v.  Wallace,  19  Mich.  57;  Berkey  v. 
Judd,  22  Minn.  287;  Greer  v.  State,  53  Ind.  420;  Bloch  v.  Price, 
24  Mo.  App.  14. 

§  290.  When  Conviction  may  be  Had  in  the  Absence  of 
Criminal  Intent. — A  malicious  or  criminal  intent  is  not  an 
essential  ingredient  of  every  crime.  Thus  gross  carelessness  or 
momentary  inattention  may  result  in  great  loss  of  life,  and  there 
may  be  an  entire  absence  of  criminal  intent;  and  yet  the  party 
offending  may  be  prosecuted  criminally  and  convicted  on  evidence 
showing  mere  carelessness  or  inattention.  As  an  illustration, 
there  was  no  evidence  of  criminal  or  malicious  intent  on  the  part 
of  the  brakeman  Parker,  who  caused  the  fearful  destruction  of 
life  on  the  Hudson  River  Railroad.  Still,  he  was  indicted,  tried 
and  sentenced  as  a  criminal.  This  rule  which  repudiates  the  evi- 
dence of  a  criminal  intent  is  vindicated  by  the  recent  case  of 
People  v.  Killer,  106  N.  Y.  321. 

The  act  alone,  irrespective  of  its  motive,  constitutes  the  crime. 
That  conclusion  was  necessarily  involved  in  the  decision  of  Peo- 
ple v.  Cipperly,  L01  X.  V.  634,  37  Him,  323. 

There  is  no  doubt  that  in  civil  cases  the  legislature  can  make 
certain  facts  prima  facie  evidence  of  another  fact.     Howard  v. 


450  LAW    OF    EVIDENCE    IN    CRIMINAL   CASES. 

Moot,  64  K  Y.  202;  Rand  v.  Ballon,  12  N.  Y.  543.  And  it 
has  been  held  competent  for  the  legislature  to  provide  that  cer- 
tain facts,  having  a  tendency  to  prove  the  existence  of  another 
fact,  shall,  in  criminal  cases,  be  prima  facie  evidence  of  the  latter 
fact.  Com.  v.  Williams,  6  Gray,  1.  But  the  court  was  careful 
to  hold  that  the  presumption  might  be  repelled  by  the  circum- 
stances or  by  other  proofs.  Com.  v.  Wallace,  7  Gray,  222;  Com. 
v.  Rowe,  14  Gray,  47.  The  legislature  cannot  make  certain  facts 
conclusive  evidence  which  in  their  nature  are  not  so.  People  v. 
Lyon,  27  Hun,  ISO.  Evidence  to  secure  a  conviction  should  be 
such  as  to  satisfy  "the  judgment  of  his  peers,"  or  of  whatever 
tribunal  that  determines  the  fate  of  the  accused.  The  various 
legislatures  may  prescribe  rules  for  the  admission  of  evidence,  but 
cannot  compel  the  trial  court  to  hold  it  conclusive  of  the  defend- 
ant's guilt,  without  regard  to  that  court's  conviction  or  judgment 
as  to  its  conclusiveness.  If  the  legislature  can  compel  the  courts 
to  render  judgment  contrary  to  their  convictions  of  the  truth, 
produced  by  the  evidence,  then  the  legislative  power  can  coerce 
the  judicial  power;  a  proposition  destructive  of  the  co-ordinate 
departments  of  the  government.  People  v.  Cijpperly,  37  Hum 
319. 

§  291.  Time  not  Necessary  to  Form  Criminal  Intent. — 
No  time  is  too  short  for  a  wicked  man  to  frame  in  his  mind  his 
scheme  of  murder,  and  to  contrive  the  means  of  accomplishing  it. 
But  this  expression  must  be  qualified,  lest  it  mislead.  It  is  true 
that  such  is  the  swiftness  of  human  thought,  that  no  time  is  too 
short,  in  which  a  wicked  man  may  not  form  a  design  to  kill,  and 
frame  the  means  of  executing  his  purpose.  Yet  this  suddenness 
is  opposed  to  premeditation  and  a  jury  must  be  well  convinced 
upon  the  evi'dence  that  there  was  time  to  deliberate  and  premed- 
itate. The  law  regards,  and  the  jury  must  rind  the  actual  intent,, 
that  is  to  say,  the  fully  formed  purpose  to  kill,  with  so  much  time 
for  deliberation  and  premeditation,  as  to  convince  them  that  this 
purpose  is  not  the  immediate  offspring  of  rashness  and  impetuous 
temper,  and  that  the  mind  has  become  fully  conscious  of  its  own 
design.  If  there  be  time  to  frame  in  the  mind,  fully  and  con- 
sciously, the  intention  to  kill,  and  to  select  the  weapon  or  means 
of  death,  and  to  think  and  know  beforehand,  though  the  time  be 
short,  the  use  to  be  made  of  it,  there  is  time  to  deliberate  and 
premeditate.      Weston  v.  Com.  Ill  Pa.  251. 


EVIDENCE    OF    MALICE,  MOTIVE,  PREMEDITATION    AND    INTENT.    457 

§  292.  Review  of  the  Authorities. — A  review  of  the  decisions 
cannot  be  uninstructive,  tlms:  In  the  case  of  Com.  v.  Mash,  7 
Met.  472,  Judge  Shaw,  in  reply  to  a  suggestion  that  where  there 
is  no  criminal  intent  there  can  be  no  guilt,  said:  "The  proposi- 
tion stated  is  undoubtedly  correct  in  a  general  sense,  but  the  con- 
clusion drawn  from  it  in  this  case  by  no  means  follows.  What- 
ever one  voluntarily  does  he  of  course  intends  to  do.  If  the 
statute  has  made  it  criminal  to  do  an  act  under  particular  circum- 
stances, the  party  voluntarily  doing  that  act  is  chargeable  with  the 
criminal  intent  to  do  that  act."     Com.  v.  Gray,  150  Mass.  327. 

One  of  the  most  singular  cases  that  can  be  found  in  the  annals 
of  criminal  law  sustaining  any  affinities  to  this  topic,  is  State  v. 
Myers,  82  Mo.  558.  As  this  case  was  appealed  on  the  express 
ground  that  the  trial  court  admitted  incompetent  evidence,  and  as 
the  opinion  which  determined  that  appeal  contains  a  singularly 
exhaustive  citation  of  authority  and  met  with  the  concurrence  of 
the  entire  court,  I  subjoin  the  text  of  the  decision  as  reported. 

''The  action  of  the  trial  court  in  admitting  certain  evidence  is 
assigned  for  error.  To  properly  understand  this  issue  it  is  impor- 
tant to  explain  the  nature  of  the  '  trick  '  by  which  the  defendant 
is  charged  to  have  attempted  to  obtain  money  from  Beard. 
Beard's  testimony  was,  that  the  defendant  came  into  the  store  and 
asked  for  a  nickel's  worth  of  tobacco.  It  was  handed  to  him,  and 
in  payment  he  handed  Beard  a  two-dollar  bill.  Beard  returned 
him  a  silver  dollar  and  ninety-five  cents  in  change.  Defendant 
dropped  the  dollar  in  silver  in  his  pocket,  and  said  he  had  found 
a  nickel,  and  laying  it  on  the  counter  with  the  other  ninety-five 
cents,  said  he  would  rather  have  a  dollar  piece  for  it.  Thereupon 
Beard  took  from  the  drawer  a  silver  dollar  and  laid  it  down. 
Whereat  the  defendant  remarked  that  he  believed  he  would 
rather  have  the  two  dollar  bill  than  the  silver,  and  requested 
Beard  to  give  it  to  him  and  take  the  two  dollars  in  silver  on  the 
counter.  Whereat  Beard  reminded  him  that  he  had  put  the  dol- 
lar in  his  pocket,  gftid  to  hand  him  that.  The  prisoner  then  took 
up  his  dollar  in  change  and  walked  out.  The  prosecuting  attorney 
then  introduced  other  witnesses,  by  whom  he  proved,  against  the 
objection  of  defendant,  that  on  the  same  day  near  the  same  time, 
both  before  and  after  the  act  in  question,  in  the  same  village,  the 
defendant  attempted  the  same  trick  on  other  clerks,  and  was 
heard  to  say  to  his  companion  that  he  had  '  knocked  them  down 


45S  LAW    OF    EVIDENCE    IN    CRIMINAL    CASES. 

for  a  one,' — alluding  to  a  house  which  he  had  just  left,  and  further 
stated  that  '  my  partner  has  done  the  town  for  $10,  and  we  are 
getting  drunk  on  the  money,  or  over  it.'  The  prosecuting  attor- 
ney stated  at  the  time,  that  this  evidence  was  introduced  for  the 
purpose  of  showing  the  intent  with  which  the  act  under  investi- 
gation was  done. 

"As  this  presents  an  important  question  in  the  administration  of 
criminal  law,  about  which  there  is  some  contrariety  of  opinion,  I 
have  given  it  much  consideration  and  investigation.  It  is  a  gen- 
eral rule  that  a  distinct  crime,  for  which  the  party  might  be  sepa- 
rately proceeded  against,  cannot  be  given  in  evidence  against  the 
prisoner  on  trial  for  a  single  offense.  It  rests  upon  the  equitable 
and  humane  principle  that  it  is  unjust  to  raise  a  presumption  of 
o-uilt  against  the  prisoner,  on  the  idea  that  having  committed  one 
offense  the  moral  obliquity  or  depravity  it  exhibits  makes  it  proba- 
ble he  would  commit  another.  And  as  it  is  difficult  to  guard 
against  the  blunder  of  the  average  jury  in  failing  to  distinguish 
the  real  purpose  for  which  such  evidence  is  admitted,  as  against 
the  bad  impression  it  would  likely  make  on  them  as  to  the  prison- 
er's general  character,  it  is  contended  that  it  would  be  safer  to 
exclude  it  under  all  circumstances.  But  the  rule  has  its  excep- 
tions, now  too  deeply  and  firmly  settled  not  to  recognize  them. 
They  are  exceptions  founded  in  as  much  wisdom  and  justice  as 
the  rule  itself.  The  most  generally  recognized  exception  is  to 
admit  other  similar  acts  for  the  purpose  of  proving  the  guilty 
knowledge  of  the  prisoner  in  cases  of  indictments  for  uttering,  or 
ha  vino-  in  his  possession  false  notes,  bills  of  exchange,  bank  bills, 
instruments  for  forging  the  same  and  counterfeit  coin,  and  recent 
possession  of  stolen  property.  1  Lead.  Crim.  Cas.  189;  Eoscoe, 
Crim.  Ev.  90;  Com.  v.  Coe,  115  Mass.  481;  Heard  v.  State,  9  Tex. 
App.  1.  The  exception  also  extends  to  admitting  other  like  acts 
as  proof  of  the  scienter  in  obtaining  money  under  false  pretenses, 
as  in  the  instance  of  falsely  representing  the  bill  of  an  insolvent 
bank  to  be  good  whereby  the  prisoner  fraudulently  obtained  prop- 
ertv.  Com.  v.  Stone,  4  Met.  43.  So  on  an  indictment  for  know- 
ingly delivering  skimmed  milk  to  a  factory,  to  be  manufactured 
into  cheese,  with  intent  to  defraud,  evidence  of  transactions  of 
the  same  character,  other  than  that  named  in  the  indictment,  has 
been  admitted  for  the  purpose  of  showing  guilty  knowledge. 
Bainbridge  v.  State,  30  Ohio  St.  265.     In  a  comparatively  recent 


EVIDENCE    OF   MALICE,  MOTIVE,  PREMEDITATION    AND    INTENT.    459 

case  {Reg.  v.  Francis,  L.  R.  2  C.  C.  128,  12  Cox,  C.  C.  612),  the 
prisoner  obtained  money  by  pretending  that  a  certain  ring  con- 
tained diamonds,  when  in  fact  it  was  composed  only  of  crystals. 
To  sustain  the  charge  of  criminal  fraud,  evidence  was  given  by 
the  crown  that  on  a  prior  occasion  the  prisoner  obtained  money 
by  falsely  representing  that  a  chain  only  coated  with  gold  was 
made  of  pure  gold.  Lord  Coleridge,  Gh.  J.,  who  delivered  the 
judgment,  said:  '  It  seems  clear  on  principle  that  when  the  act 
charged  is  proved,  and  the  only  remaining  question  is,  whether  at 
the  time  he  did  it  he  had  guilty  knowledge  of  the  quality  of  his 
act,  or  acted  under  mistake,  evidence  of  the  class  received  must 
be  admissible.  It  tends  to  show  that  he  was  pursuing  a  course  of 
similar  acts,  and  thereby  it  raises  a  presumption  that  he  was  not 

acting  under  a  mistake.' 

********         *         * 

"In  Rex  v.  Winkworth,  4  Car.  &  P.  444,  the  prisoner  came  with 
a  mob  to  prosecutor's  house,  and  one  of  the  mob  went  up  to  him 
and  very  civilly  advised  him  that  he  would  better  give  the  mob 
something  to  get  rid  of  them,  which  he  did.  For  the  purpose  of 
showing  that  this  was  not  disinterested  and  honest  advice,  the 
prosecutor  introduced  evidence  that  this  mob  at  other  houses 
demanded  money  on  the  same  day  while  the  prisoners  or  some  of 
them  were  with  him.  The  competency  of  it  was  affirmed  by  such 
judges  as  Park,  Vaughn,  Alderson  and  Lord  Tenterden.  In  Reg. 
v.  Garner,  3  Fost.  &  F.  681,  on  the  trial  of  the  husband  and  wife 
for  the  murder  of  his  mother  by  poison,  evidence  was  admitted  to 
show  that  the  former  wife  of  the  prisoner  died  in  the  same  way, 
'  with  a  view  to  enable  the  jury  to  determine  as  to  whether  such 
was  accidental  or  not.'  See  1  Greenl.  Ev.  53;  3  Russell,  Crimes,' 
§§  285,  288;  Roscoe,  Crim.  Ev.  SQ,  89. 

"The  American  authorities  are,  if  anything,  more  pronounced  in 
favor  of  the  competency  of  this  evidence.  Bottomley  v.  United 
States,  1  Story,  135,  was  a  proceeding  by  information  on  a  libel 
of  seizure  of  goods  imported  and  concealed  in  fraud  of  the  impost 
laws.  The  government  on  the  trial  introduced  evidence  of  former 
similar  acts  of  the  libelee  to  show  the  criminal  intent  of  the  act 
in  question.  Story,  J.,  held  the  proof  competent  inter  alia  'to 
repel  the  suggestion  that  the  act  might  be  fairly  attributable  to 
accident,  mistake,  or  innocent  rashness,  or  negligence.'  Ar</u- 
sndo,  he  said:     '  In  all  cases  where  the  guilt  of  the  party  depends 


460  LAW    OF   EVIDENCE   IN   CRIMINAL   CASES. 

upon  the  intent,  purpose  or  design  with  which  the  act  is  done,  or 
upon  his  guilty  knowledge  thereof,  I  understand  it  to  be  a  general 
rule  that  collateral  facts  may  be  examined  into,  in  which  he  bore 
a  part  for  the  purpose  of  establishing  such  guilty  intent,  design, 
purpose  or  knowledge.'  This  question  came  again  before  this- 
same  learned  judge,  when  on  the  supreme  bench  of  the  United 
States  in  the  case  of  Wood  v.  United  States,  41  U.  S.  16  Pet.  342, 
10  L.  ed.  987;  which  was  a  proceeding  similar  to  the  case  just 
cited.  For  the  purpose  of  showing  the  fraudulent  intent  on  the 
libelee  the  government  introduced  evidence  of  other  fraudulent 
invoices,  etc.  Story,  </.,  in  delivering  the  opinion,  said:  '  The 
question  was  one  of  fraudulent  intent  or  not,  and  upon  questions 
of  that  sort,  where  the  intent  of  the  party  is  matter  in  issue,  it 
has  always  been  deemed  allowable,  as  well  in  criminal  as  civil 
cases,  to  introduce  evidence  of  other  acts  and  doings  of  a  party  of 
a  kindred  character,  in  order  to  illustrate  or  establish  his  intent 
or  motive,  in  the  particular  act  directly  in  judgment.  Indeed  in 
no  other  way  would  it  be  practicable  in  many  cases  to  establish! 
such  intent  or  motive,  for  the  single  act,  taken  by  itself,  may  not 
be  decisive  either  way;  but  taken  in  connection  with  others  of  a 
like  character  and  nature,  the  intent  and  motive  may  be  demon- 
strated almost  with  a  conclusive  certainty.  They  constitute  excep- 
tions to  the  general  rule,  excluding  evidence  not  directly  compre- 
hended within  the  issue;  or  rather,  perhaps,  it  may  with  more 
certainty  be  said,  the  exception  is  necessarily  embodied  in  the  very 
substance  of  the  rule;  for  whatever  does  legally  conduce  to  estab- 
lish the  point  in  issue,  is  necessarily  embraced  in  it,  and  therefore 
a  proper  subject  of  proof,  whether  it  be  direct  or  only  presump- 
tive.' After  stating  the  exception  in  favor  of  the  admission  of 
such  evidence  in  proof  of  guilty  knowledge  in  cases  of  forgery,, 
uttering  false  notes  and  passing  counterfeit  money,  etc.,  he  adds: 
'  Cases  of  fraud  present  a  still  more  stringent  necessity  for  the 
application  of  the  same  principle;  for  fraud  being  essentially  a 
matter  of  motive  and  intention,  is  often  deducible  from  a  great 
variety  of  circumstances,  no  one  of  which  is  absolutely  decisive;. 
but  all  combined  together  may  become  almost  irresistible  as  to 
the  true  nature  and  character  of  the  transaction  in  controversy.' 
"  In  Osborne  v.  People,  2  Park.  Crim.  Rep.  583,  this  rule  was 
recognized  and  applied.  The  court  said  :  '  The  acts  of  the  pris- 
oner while  in  the  store  rendered  it  somewhat  doubtful  whether 


EVIDENCE    OF    MALICE,  MOTIVE,  PREMEDITATION    A£ID    INTENT.    461 

the  entry  was  a  burglary  or  a  trespass,  hence  the  necessity  of  the 
proof  to  show  the  intent,'  And  in  People  v.  Wood,  3  Park. 
Crim.  Rep.  681,  evidence  of  prior  offenses,  of  a  similar  character, 
more  or  less  connected  with  that  on  trial,  was  admitted,  not  for 
the  purpose  of  proving  the  act  under  investigation,  but  '  distinctly 
and  solely  for  the  purpose  of  establishing  the  quo  animo,  the 
motive  existing  in  the  mind  of  the  prisoner,'  in  committing  the 
act  for  which  he  was  indicted.  In  Com.  v.  Turner,  3  Met.  19, 
this  question  is  ably  considered  by  the  supreme  court  of  Massa- 
chusetts. Turner  was  indicted  jointly  with  one  Shearer  for  kid- 
napping a  negro  boy  in  Massachusetts  and  running  him  off  to 
Virginia.  For  the  purpose  of  showing  that  Turner  was  acting 
with  a  guilty  intent  in  connection  with  Shearer,  the  prosecution 
introduced  evidence  to  the  effect  that  on  the  morning  of  the  day 
of  the  alleged  abduction  Turner  was  in  company  with  Shearer, 
inquiring  after  another  colored  boy,  and  also,  that  on  the  previous 
day  Turner  endeavored  to  procure  a  colored  boy  from  the  over- 
seer of  the  poor  at  the  alms-house  under  false  pretenses.  After 
stating  the  general  rule,  and  the  exception  in  admitting  such 
proof  to  establish  the  scienter  when  material,  Dewy,  J.,  says : 
*  Evidence  of  other  acts  than  those  connected  immediately  with 
the  act  charged  are  always  admissible,  where  the  intent  of  the 
defendant  forms  a  material  part  of  the  issue,  and  where  those 
facts  can  be  supposed  to  have  any  proper  tendency  to  establish 
the  intent.  .  .  .  The  intent  and  purpose  of  the  defendant,  in 
obtaining  the  custody  and  possession  of  the  individual  alleged  to 
be  unlawfully  taken,  were  to  be  inferred  from  circumstances,  and 
necessarily  opened  a  wide  door  for  the  introduction  of  evidence  of 
the  acts  of  the  party  accused,  having  any  reasonable  degree  of 
connection  with  the  particular  act  complained  of.  It  was  with 
the  view  of  fixing  the  character  of  the  last  act,  that  evidence  was 
received  of  the  conduct  and  declarations  of  the  defendant  on  the 
day  previous,  and  at  another  place,  and  in  reference  to  another 
individual.  .  .  .  With  reference  to  such  purpose,  and  thus 
limited,  it  seems  to  us  to  have  been  properly  admitted. ' 

"It  would  be  difficult  to  find  in  a  like  discussion  a  case  more 
parallel  in  its  facts  and  principles  than  that  of  Trn<j,l<,n  v.  Com. 
31  Gratt.  862,  in  which  this  matter  is  received  most  thoroughly 
by  that  eminent  jurist,  Staples,  J.  The  prisoner  was  indicted 
for  obtaining  goods  from  M.  &  Co.  upon  false  pretenses.     On  the 


402  LAW    OF    EVIDENCE    IN    CRIMINAL    CASES. 

trial  the  commonwealth  introduced  evidence  to  the  effect  that 
the  accused,  in  the  same  city  and  at  or  about  the  same  time,  pur- 
chased goods  from  other  parties  upon  like  false  pretenses;  for  the 
purposes  of  showing  the  intent  of  the  accused  in  making  the  rep- 
resentations to  M.  &  Co.,  it  was  held  admissible  for  this  purpose, 
and  the  decision  is  placed  throughout  upon  the  ground  that  the 
evidence  bore  upon  the  cpiestion  of  the  fraudulent  intent  with 
which  the  act  was  done.  The  authorities  are  collected  and  re- 
viewed with  a  master's  hand;  and  they  sustain  the  proposition 
contended  for  beyond  any  reasonable  controversy. 

"In  answer  to  the  suggestion  of  the  counsel  for  the  prisoner,  that 
when  the  prisoner  did  the  act  in  question,  as  it  was  proved  he  did, 
the  jury  must  infer  the  intent  from  the  act;  and  therefore  evi- 
dence of  collateral  facts  is  unnecessary  and  irrelevant,  and  calcu- 
lated to  mislead  the  jury,  the  court  said  :  '  It  may  be  conceded 
that  when  goods  are  obtained  by  false  representations,  the  jury 
may  justly  infer  the  fraudulent  intent.  But  it  frequently  happens 
in  a  large  majority  of  cases,  there  are  numerous  facts  and  circum- 
stances, sometimes  of  a  minute  and  varied  character,  throwing 
light  upon  the  conduct  and  motives  of  the  accused.  It  is  impos- 
sible for  the  court  to  foresee  what  may  be  developed  in  the 
progress  of  the  trial.  When  evidence  is  offered  of  other  transac- 
tions of  the  accused  to  show  the  guilty  intent,  is  the  court  to  say 
the  intent  is  already  conclusively  proved,  and  the  evidence  is- 
therefore  irrelevant  ?  What  would  be  thought  of  a  judge  who 
would  thus  prejudice  the  case  and  invade  the  province  of  the 
jury  ?  The  learned  counsel  would  hardly  concede  the  fraudulent 
intent  of  his  client  upon  any  state  of  facts.  .  .  .  We  are 
asked  to  say  that  the  evidence  set  out  in  the  bill  of  exceptions  is 
irrelevant,  upon  the  assumption  that  without  it  the  jury  must  have 
found  the  guilty  intent  on  the  part  of  the  accused.'  This  and  its 
cognates  are  fully  sustained  by  the  following  cases:  Friend  v. 
HamiU,  34  Md.  208;  Gary  v.  Hotailing,  1  Hill,  311,  37  Am.  Dec. 
323;  Phillips  v.  People.  57  Barb.  354;  Rowley  v.  Bigeloto,  12 
Pick.  Mil.  23  Am.  Dec.  607;  Com.  v.  Eastman,  1  Cush.  189,  48 
Am.  Dec.  596;  Corn.  v.  Tuckerman,  10  Gray,  173;  McKenney  v. 
Dingley,  1  Me.  172;  BielschofsJcy  v.  People,  3  Hun,  40,  affirmed 
in  60  X.  Y.  616;  Miller  v.  Barber,  GQ  N.  Y.  559. 

"  It  has  been  suggested  that  this  doctrine  is  opposed  by  so  great 
a  jurist  as  Judge  Agnew  in  the  case  of  Shaffner  v.  Com.  72  Pa. 


EVIDENCE    OF   MALICE,  MOTIVE,  PREMEDITATION    AND    INTENT.    463 

60.  In  the  course  of  that  opinion  he  says :  '  To  make  one  crim- 
inal act  evidence  of  another,  a  connection  must  have  existed  be- 
tween them  in  the  mind  of  the  actor,  linking  them  together  for 
some  purpose  he  intended  to  accomplish;  or  it  must  be  necessary 
to  identify  the  person  of  the  actor,  by  a  connection  which  shows 
that  he  who  committed  the  one  must  have  done  the  other.'  The 
case  was  one  which  did  not  render  such  evidence  material  in 
ascertaining  the  intent  of  the  party  accused. 

"Hence  it  is  to  be  observed  that  he  treats  the  question  as  if  the 
attempt  was  made  by  the  nisi  court  '  to  make  one  criminal  act 
evidence  of  another.'  In  such  case,  there  can  be  no  question  but 
there  should  be  such  a  connection  between  the  two  acts  or  offenses 
as  to  link  them  together  in  the  mind  of  the  actors,  so  as  to  make 
one  follow  the  other  as  a  means  to  an  end.  This  was  the  state  of 
the  case  in  State  v.  Greemwade,  72  M<>.  298.  The  limitation  of 
the  rule  as  applied  by  Agnew,  J.,  supra,  was  proper,  because  there 
was  no  question,  essentially,  of  guilty  knowledge  or  intent,  for  as 
it  said  in  the  statement  of  the  case  :  '  The  evidence  tended  to 
show  that  she  died  of  poison,  and  the  principal  question  was 
whether  the  poison  had  been  administered  by  the  defendant.' 

"In  the  case  at  bar  the  very  gist  of  the  offense  charged  is  the 
criminal  intent  with  which  the  act  was  done,  and  the  burden  of 
proof  rests  upon  the  state.  Andble  v.  Com.  24  Gratt.  563.  It 
must  be  shown  affirmatively  that  the  defendant's  purpose  was  to 
defraud.  Such  intent  is  not  a  presumption  of  law,  but  is  a  fact 
to  be  found  by  the  jury.  Trogdon  v.  Com.  31  Gratt.  862.  It 
has  been  held  by  the  highest  authority  in  this  class  of  cases,  that 
even  the  admission  of  the  accused  that  the  act  was  done  with  the 
criminal  intent  cannot  preclude  the  state  from  proving  it  by  any 
other  competent  testimony,  for  the  jury  are  the  sole  judges  of  the 
evidence.  Com.  v.  McCarthy,  119  Mass.  354;  Priest  v.  Groton, 
103  Mass.  530.  Under  the  facts  of  this  case  it  was  for  the  jury 
to  say  whether  the  act  of  the  prisoner  was  a  criminal  act,  done 
with  a  fraudulent  intent  to  obtain  the  money  of  the  clerk,  or 
whether  it  was  a  mistake  of  effort  merely  to  practice  upon  him  a 
joke.  The  jury,  without  violence  to  reason,  under  an  instruction 
to  give  the  prisoner  the  benefit  of  every  reasonable  doubt,  have 
convicted  him.  The  prosecuting  attorney,  as  suggested  by  Sta- 
ples, -/.,  supra,  and  by  Roscoe  in  his  Criminal  Evidence,  p.  91, 
had  the  right  to  anticipate  an  obvious  defense  of  the  prisoner  that 


464  LAW    OF    EVIDENCE    IN    CRIMINAL    CASES. 

it  was  a  mistake  «>r  without  criminal  intent,  and  put  in,  in  the 
first  instance,  all  his  evidence  bearing  on  the  issue.  The  evidence 
further  showed  that  the  prisoner  started  out  on  that  day  with  the 
perpetration  of  the  several  acts  linked  together  in  his  mind.  His 
purpose  was,  to  employ  his  own  vulgar  but  suggestive  terms,  '  to 
do  the  town.'  He  did  'beat'  the  unwary  out  of  $10  by  the 
same  attempted  '  trick.' "     Stale  v.  Myers,  S2  Mo.  562. 


CHAPTER  XXXYIII. 

CORPUS  DELICTI. 

§  293.   The  Term  Defined. 

294.  Full  Proof  of  not  Required. 

295.  What  must  be  Shown. 

296.  Cannot  be  Proved  by  Uncorroborated  Confessions. 

297.  May  be  Shown  by  Circumstantial  Evidence. 

298.  Recent  Legislation  on  this  Subject. 

299.  Intent  of  the  Rule  Requiring  Proof  of. 

§293.  The  Term  Defined.— The  corpus,  delicti  comprehends 

the  essential  elements  of  an  offense — the  fact  that  the  particular 
crime  alleged  has  been  actually  committed. 

The  corpus  delicti  must  be  proved  like  any  other  fact,  that  is, 
beyond  a  reasonable  doubt,  and  that  doubt  is  for  the  jury.  A 
•confession  alone  is  not  regarded  as  sufficient  proof.  The  state 
must  first  produce  sufficient  evidence  to  send  the  case  to  the  jurv 
and  the  jury  are  first  to  be  satisfied,  from  that  evidence,  that  the 
crime  has  been  committed. 

The  doctrine  applies  to  other  crimes,  as,  larceny.  The  posses- 
sion of  the  fruits  of  a  crime  may  do  away  with  direct  proof  of  the 
corpus  delicti.  See  Anderson,  Law  Diet,  title  Corpus  Delicti, 
citing,  inter  alia,  Gray  v.  Com.  101  Pa.  386,  47  Am.  Eep.  733; 
Miltenberger  v.  Logansport,  ('.  &  S.  W.  R.  Co.106  U.  S.  311,27 
L.  ed.  126;  TJdderzook  v.  Com.  7')  Pa.  340;  Pitts  v.  State,  43 
Miss.  480,  482;  United  States  v.  Williams,  1  Cliff.  25;  Johnson 
v.  Com.  85  Ky.  377,  4  Crim.  L.  Mag.  902,  1)12. 

It  is  a  general  rule  not  to  convict  unless  the  corpus  delicti  can 
be  established,  that  is.  until  the  fact  that  the  crime  has  been  actu- 
ally perpetrated  has  been  first  proved.  Hence,  on  a  charge  of 
homicide  the  accused  should  not  be  convicted  unless  the  death  be 
first  distinctly  proved,  either  by  direct  evidence  of  the  fact  or  by 
inspection  of  the  body.  Best.  Presumptions,  201;  1  Stark.  Ev.  575. 
See  Rex  v.  Tend,  6  Car.  &  P.  176;  -2  Hale.  P.  C.  290.  Instances 
have  occurred  of  a  person  being  convicted  of  having  killed  an- 
other, who,  after  the  supposed  criminal  lias  been  put  to  death  for 
the  supposed  offense,  has  made  his  appearance  alive.  The  wi,s- 
30  465 


466  LAW  OF   EVIDENCE   IN   CRIMINAL   CASES. 

dom  of  the  rule  is  apparent;  but  it  has  been  questioned  whether, 
in  extreme  cases  it  may  not  be  competent  to  prove  the  basis  of 
the  corpus  delicti,  by  presumptive  evidence.  3  Bentham,  Judi- 
cial Ev.  234;  Wills,  Circ.  Ev.  105;  Best,  Presumptions,  204.  See 
1  Bouvier,  Law  Diet,  title  Corpus  Delicti. 

The  corpus  delicti  consists  not  merely  of  an  objective  crime, 
but  of  the  defendant's  agency  of  the  crime;  and  it  is  well  settled 
that,  unless  the  corpus  delicti  in  both  these  respects  is  proved,  a 
confession  even  is  not  by  itself  enough  to  sustain  a  conviction. 
It  must  be  corroborated.  This  can  seldom  be  done  by  direct  or 
positive  testimony,  but  it  may  as  well  be  shown  by  circumstantial 
evidence.      Willa?*d  v.  State,  27  Tex.  App.  386. 

§  294.  Full  Proof  of  not  Required.— "Full  proof,"  said 
Nelson,  Ch.  J.,  in  People  v.  Badgley,  16  Wend.  59,  "of  the  body 
of  the  crime,  the  corpus  delicti,  independently  of  the  confession, 
is  not  required  by  any  of  the  cases,  and  in  many  of  them  slight 
corroborating  facts  were  held  sufficient." 

Nor  is  it  necessary  that  the  corpus  delicti  should  be  proved  by 
direct  and  positive  evidence;  it  would  be  most  unreasonable  to 
require  such  evidence.  Crimes,  and  especially  those  of  the  worst 
kinds,  are  naturally  committed  at  chosen  times,  and  in  darkness 
and  secrecy;  and  human  tribunals  must  act  upon  such  indications 
as  the  circumstances  of  the  case  present  or  admit,  or  society  must 
be  broken  up.  Nor  is  it  very  often  that  adequate  evidence  is  not 
afforded  by  the  attendant  and  surrounding  facts,  to  remove  all 
mystery,  and  to  afford  such  a  reasonable  degree  of  certainty  as 
men  are  daily  accustomed  to  regard  as  sufficient  in  the  most  im- 
portant concerns  of  life;  to  expect  more  would  be  equally  need- 
less and  absurd. 

While  direct  evidence  of  the  corpus  delicti  is  always  desirable, 
it  should  not  be  held  indispensable.  To  so  hold  would,  in  many 
cases,  give  immunity  to  crime,  especially  in  the  class  of  cases  to 
which  this  belongs.  There  is  some  conflict  of  authority;  but  we 
regard  this  as  a  better  doctrine.  If,  however,  circumstantial  evi- 
dence is  relied  upon  for  this  purpose,  it  should  be  such  as  to  ex- 
clude all  reasonable  doubt.  1  Bishop,  Crim.  Proc.  §  1071;  Rob- 
erts v.  People,  11  Colo.  213. 

295.  What  must  foe  Shown. — Every  allegation  of  the  com- 
mission of  legal  crime  involves  the  establishment  of  two  distinct 
propositions;  namely,  that  an  act  has  been  committed  from  which 


COKPUS    DELICTI.  467 

legal  responsibility  arises,  and  that  the  guilt  of  such  act  attaches 
to  a  particular  individual,  though  the  evidence  is  not  always  sep- 
arable into  distinct  parts,  or  applicable  to  each  of  those  proposi- 
tions. 

Such  a  complication  of  difficulties  occasionally  attends  the  proof 
of  crime,  and  so  many  cases  have  occurred  of  convictions  for 
alleged  offenses  which  have  never  existed,  that  it  is  a  fundamental 
and  inflexible  rule  of  legal  procedure,  of  universal  obligation,  that 
no  person  shall  be  required  to  answer,  or  be  involved  in  the  con- 
sequences of  guilt  without  satisfactory  proof  of  the  corpus  delicti,. 
either  by  direct  evidence,  or  by  cogent  and  irresistible  grounds  of 
presumption.  Rex  v.  Burdett,  4  Earn.  &  Aid.  123.  If  it  be 
objected  that  rigorous  proof  of  the  corpus  delicti  is  sometimes 
unattainable,  and  that  the  effect  of  exacting  it  must  be  that  crime 
will  occasionally  pass  unpunished,  it  must  be  admitted  that  such 
may  possibly  be  the  result;  but  it  is  answered  that,  where  there  is 
no  proof,  or,  which  is  the  same  thing,  no  sufficient  legal  proof  of 
crime,  there  can  be  no  legal  criminality.  In  penal  jurisdiction 
there  can  be  no  middle  term;  that  the  party  must  be  absolutely 
and  unconditionally  guilty  or  not  guilty. 

Burrill,  in  his  work  on  Circumstantial  Evidence,  page  6S2,  lays 
down  the  correct  rule.  He  says :  "A  dead  body  or  its  remains 
having  been  discovered  and  identified  as  that  of  the  person  charged 
to  have  been  slain,  and  the  basis  of  the  corpus  delicti  being  thus 
fully  established,  the  next  step  in  the  process,  and  the  one  which 
seems  to  complete  the  proof  of  that  indispensable  preliminary 
fact,  is  to  show  that  the  death  has  been  occasioned  by  the  crimi- 
nal act  or  agency  of  another  person.  This  may  always  be  done 
by  means  of  circumstantial  evidence,  including  that  of  the  pre- 
sumptive kind;  and,  for  this  purpose,  a  much  wider  range  of 
inquiry  is  allowed  than  in  regard  to  the  fundamental  fact  of  death, 
and  all  the  circumstances  of  the  case,  including  facts  of  conduct- 
on  the  part  of  the  accused,  may  be  taken  into  consideration." 

§  296.  Cannot  be  Proved  by  Uncorroborated  Confessions. — 
There  is  abundant  authority  and  little  dissent  to  the  proposition 
that  extra-judicial  confessions  alone,  uncorroborated  by  other 
evidence,  are  inadequate  to  establish  corpus-  delicti.  Brown  v. 
State,  32  Miss.  433;  People  v.  Badgley,  16  Wend.  53;  State  v. 
Scott,  39  Mo.  424;  Jenkins  v.  State,  41  Miss.  582;  People  v.  Jones, 
31  Cal.  565;  Stringrf'ellow  v.  State,  26  Miss.  157,  59  Am.  Dec.  217; 


46S  LAW    OF    EVIDENCE    IN    CRIMINAL    CASES. 

Smith  v.  Com.  21  Gratt.  809;  People  v.  Ruloff,  3  Park.  Crim. 
Rep.  401;  Territory  v.  McClin,  1  Mont.  394;  State  v.  German, 
54  Rio.  526,  11  Am.  Rep.  481;  Blackburn  v.  State,  23  Ohio  St. 
146;  People  v.  Thrall,  50  Cal.  415;  United  States  v.  Mulvaney, 
4  Park.  Crim.  Rep.  164. 

In  the  ease  of  Bidoff  v.  People,  18  N.  Y.  179,  "prisoner's 
counsel  .  .  .  moved  the  court  to  stop  the  trial  for  want  of 
proof  of  the  corpus  delicti;  and  invoked  the  protection  of  the 
rule  laid  down  by  Lord  Hale,  that  no  person  should  be  convicted 
of  murder  or  manslaughter,  unless  the  facts  were  proved  to  be 
done,  or  at  least  the  body  found  dead."  The  motion  was  sus- 
tained. In  the  course  of  a  well  reasoned  opinion  by  Chief  Jus- 
tice Johnson,  the  following  exposition  of  the  subject  under  review 
occur.- : 

''The  corpus  delicti  as  it  is  termed  in  the  law,  by  which  is  meant 
the  body  of  the  crime,  the  fact  that  a  murder  has  been  commit- 
ted must  be  clearly  and  conclusively  proved  by  the  government. 

"The  corpus  delicti  is  made  up  of  two  things :  first,  of  certain 
facts  forming  the  basis  of  the  corpus  delicti,  by  which  is  meant 
the  fact  that  a  human  being  has  been  killed;  and  second,  the  ex- 
istence of  criminal  and  human  agency  as  the  cause  of  the  death. 
Upon  this  first  branch  of  the  case,  the  prisoner's  counsel  insists 
that  it  can  only  be  proved  by  direct  and  positive  evidence,  that 
the  government  must  prove  the  fact  of  death  by  witnesses  who 
saw  the  killing,  or  at  least  the  dead  body  must  be  found.  It  has 
been  said  by  some  judges  that  a  conviction  for  murder  ought 
never  to  be  permitted  unless  the  killing  was  positively  sworn  to 
or  the  dead  body  was  found  and  identified.  This,  as  a  general 
proposition,  is  undoubtedly  correct,  but,  like  other  general  rules, 
has  its  exceptions,  it  may  sometimes  happen  that  the  dead  body 
cannot  be  produced,  although  the  proof  of  death  is  clear  and  sat- 
isfactory. A  strong  case  in  illustration  is  that  of  a  murder  at  sea, 
when  the  body  is  thrown  overboard  in  a  dark  and  stormy  night, 
at  a  great  distance  from  land  or  any  vessel.  Although  the  body 
cannot  be  found,  nobody  can  doubt  that  the  author  of  such  a 
crime  is  guilty  of  murder.  In  such  a  case,  the  law  permits  the 
jury  to  infer  that  death  has  ensued  from  the  facts  proved;  the 
circumstances  being  such  as  to  exclude  the  least,  if  not  almost 
every  probability,  that  such  a  person  could  have  escaped  with 
life;  and  yet  there  is  a  bare  possibility  in  such  a  case  that  the  per- 
son could  have  escaped  with  life. 


CORPUS   DELICTI.  469 

"I  am  of  opinion  that  the  rule,  as  understood  in  this  country, 
does  not  require  the  fact  of  death  to  be  proved  by  positive  and 
direct  evidence  in  cases  where  the  discovery  of  the  body,  after  the 
crime,  is  impossible.  In  such  cases  the  fact  may  be  established 
by  circumstances,  where  the  evidence  is  so  strong  and  intense  as 
to  produce  the  full  certainty  of  death.  By  the  proof  of  a  fact 
by  presumptive  evidence,  we  are  to  understand  the  proof  of  facts 
and  circumstances  from  which  the  existence  of  such  fact  may  be 
justly  inferred.  The  facts  and  circumstances  to  establish  the 
death  in  the  case  of  murder,  in  the  absence  of  any  positive  evi- 
dence, must  be  so  strong  and  intense  as  to  produce  the  full  cer- 
tainty of  death,  or,  as  Mr.  Wills  says,  'the  death  may  be  inferred 
from  such  strong  and  unequivocal  circumstances  as  render  it 
morally  certain,  and  leave  no  ground  for  reasonable  doubt.' " 
EuloffY.  People,  18  K  Y.  182. 

The  coipus  delicti  must  be  established  by  evidence  independ- 
ently of  the  confession.  State  v.  Guild,  10  ~N.  J.  L.  193;  State 
v.  Dubois,  54  Iowa,  363;  May  v.  State,  92  111.  343;  Pitts  v.  State, 
43  Miss.  472;  Gray  v.  Com.  101  Pa.  386,  47  Am.  Rep.  733;  Priest 
v.  State,  10  Neb.  393;  United  States  v.  Searcey,  26  Fed.  Eep.  435; 
Hope's  Case,  1  City  Hall  Rec.  150;  People  v.Badgley,  16  Wend. 
53;  People  v.  McGloin,  91  N".  Y.  242;  Whart.  Am.  Crim.  L. 
§  633;  Bishop,  Crim.  L.  §  1071. 

On  the  whole,  the  doctrine  may  be  said  to  be,  that  special  care 
should  be  exercised  as  to  the  corpus  delicti,  and  there  should  be 
no  conviction  except  where  this  part  of  the  case  is  proved  with 
particular  clearness  and  certainty.  Hence  the  rule  as  to  purely 
uncorroborated  confessions  out  of  court.  Alone,  they  are  never 
quite  satisfactory  proof;  which  the  evidence,  whether  circumstan- 
tial or  correct,  must  be,  to  establish  the  corpus  delicti.  This  is 
the  substance  of  the  doctrine,  but  some  judges  spin  it  a  little  more 
finely.  Bishop,  Crim.  Proc.  §  1059,  citing  Smith,  v.  Com.  21 
Gratt.  809;  State  v.  Davidson,  30  Vt.  377,  73  Am.  I  >ec. ::  1 2;  State 
v.  Keeler,  28  Iowa,  551;  Fuller^  v.  State,  48  Ala.  27:*.;  Pitts  v. 
State,  43  Miss.  472;  State  v.  Hogard,  12  .Minn.  293;  State  v.  Mc- 
Gowan,  1  S.  C.  14;  Taylor  v.  State,  35  Tex.  97;  Peopl  v.  Wil- 
son, 3  Park.  Crim.  Rep.  199;  Sam  v.  State,  33  .Miss.  347;  State  v. 
Williams,  52  X.  C.  446;  Tyner  v.  State,  i>  Humph.  383;  Burton 
v.  March,  51  K  C.  409;  Phillips  v.  State,  29  Ga.  105. 

§  297.  May  be  Shown  by  Circumstantial  Evidence.— An 


470  LAW    OF    EVIDENCE    IN    CRIMINAL    CASES.  ' 

intelligent  commentary  upon  this  subject  is  from  the  Kentucky 
court  of  appeals,  as  the  following  language  will  indicate:  "The 
only  question  presented  is  whether  the  corpus  delicti,  the  fact 
that  the  crime  of  murder  has  been  perpetrated,  must  be  established 
by  direct  proof  of  the  killing,  or  by  an  inspection  of  the  body;  or 
whether  the  death  may  not  be  established  by  circumstantial  evi- 
dence, as  any  other  fact  in  the  case  is  established.  We  think 
there  can  be  no  doubt  that  circumstantial  evidence  is  competent 
to  establish  the  fact  that  the  person  charged  to  have  been  mur- 
dered is  dead.  The  production  of  the  body  is  certainly  the  most 
conclusive,  if  not  the  best  evidence  of  that  fact,  but  in  the  very 
nature  of  crimes  this  is  not  always  possible."  Johnson  v.  Com. 
85  Ky.  377,  4  Crim.  L.  Mag.  902.  See  also  State  v.  Ah  Chuey, 
14  Nev.  79,  33  Am.  Rep.  530. 

An  early  New  York  case  of  great  celebrity  was  reasoned  on 
similar  lines  by  Ch ief  Justice  Johnson.  "The  corpus  delicti,  in. 
murder,  has  two  components,  death  as  the  result  and  the  criminal 
agency  of  another  as  the  means.  It  is  only  where  there  is  direct 
proof  of  one  that  the  other  can  be  established  by  circumstantial 
evidence."  Ruloff  v.  People,  18  N.  Y.  179.  And  a  very  recent 
decision  of  the  Illinois  supreme  court  supports  the  game  view. 
"Kor  is  it  essential  that  the  corpus  delicti  should  be  established 
by  evidence  independent  of  that  which  tends  to  connect  the  accused 
with  its  perpetration.  The  same  evidence  which  tends  to  prove 
one  may  also  tend  to  prove  the  other,  so  that  the  existence  of  the 
crime  and  the  guilt  of  the  defendant  may  stand  together  insepara- 
ble on  one  foundation  of  circumstantial  evidence."  Carroll  v. 
People,  136  111.  463. 

The  English  judges  have  universally  adopted  a  similar  ruling 
and  proof  of  the  corpus  delicti  by  circumstantial  evidence  is  in  all 
cases  permissible. 

Mr.  Justice  Holroyd  has  said:  "Xo  man  is  to  be  convicted 
of  any  crime  upon  mere  naked  presumption.  A  light  or  rash 
presumption,  not  arising  either  necessarily,  probably,  or  reason- 
ably, from  the  facts  proved,  cannot  avail  in  law.  But  crimes 
of  the  highest  nature,  more  especially  cases  of  murder,  are  estab- 
lished, and  convictions  and  executions  thereupon  frequently  take 
place  for  guilt  most  convincingly  and  conclusively  proved,  upon 
presumptive  evidence  only  of  the  guilt  of  the  party  accused; 
and  the  well-being  and  security  of  society  much  depend  upon  the 


CORPUS   DELICTI.  471 

receiving  and  giving  due  effect  to  such  proof.  The  presumptions 
arising  from  those  proofs  should,  no  doubt,  and  most  especially  in 
cases  of  great  magnitude,  be  duly  and  correctly  weighed.  They 
stand  only  as  proofs  of  the  facts  presumed  till  the  contrary  be 
proved,  and  those  presumptions  are  either  weaker  or  stronger 
according  as  the  party  has,  or  is  reasonably  supposed  to  have  it 
in  his  power  to  produce  other  evidence  to  rebut  or  to  weaken 
them,  in  case  the  fact  so  presumed  be  not  true,  and  according  as 
he  does  or  does  not  produce  such  contrary  evidence."  Of  similar 
tenor  are  the  remarks  of  Mr.  Justice  Bayley:  "No  one  can  doubt 
that  presumptions  can  be  made  in  criminal  as  well  as  in  civil  cases. 
It  is  constantly  the  practice  to  act  upon  them,  and  I  apprehend 
that  more  than  one  half  of  the  persons  convicted  of  crimes,  are 
convicted  on  presumptive  evidence.  If  a  theft  has  been  commit- 
ted, and  shortly  afterwards  the  property  is  found  iu  the  possession 
of  a  person  who  can  give  no  account  of  it,  it  is  presumed  that  he 
is  the  thief,  and  so  in  other  criminal  .cases;  but  the  question  always 
is,  whether  there  are  sufficient  premises  to  warrant  the  conclusion." 
Lord  Chief  Justice  Abbott  supports  the  same  view:  "A  fact 
must  not  be  inferred  without  premises  which  will  warrant  the 
inference;  but  if  no  fact  could  be  thus  ascertained  by  inference  in 
a  court  of  law,  very  few  offenses  would  be  brought  to  punish- 
ment. In  a  great  proportion  of  trials,  as  they  occur  in  practice, 
no  direct  proof  that  the  party  accused  actually  committed  the 
crime  is  or  can  be  given;  the  man  who  is  charged  with  theft  is 
rarely  seen  to  break  the  house  or  take  the  goods;  and  in  cases  of 
murder,  it  rarely  happens  that  the  eye  of  any  witness  sees  the 
fatal  blow  struck,  or  the  poisonous  ingredient  poured  into  the 
cup.'  The  law  on  this  point  was  also  very  emphatically  declared 
by  Mr.  Boron  Parke  in  TaweWs  Case.  His  lordship  said:  'The 
jury  had  been  properly  told  by  the  counsel  for  the  prosecution 
that  circumstantial  evidence  is  the  only  evidence  which  can  in 
■cases  of  this  kind  lead  to  discovery.  There  is  no  way  of  investi- 
gating them  except  by  the  use  of  circumstantial  evidence;  but 
Providence  has  so  ordered  the  affairs  of  men  that  it  most  fre- 
quently happens  that  great  crimes  committed  in  secret  leave 
behind  them  some  traces,  or  are  accompanied  by  some  circum- 
stances which  lead  to  the  discovery  and  punishment  -of  the 
offender;  therefore  the  law  has  wisely  provided  that  you  need  not 
have,  in  cases  of  this  kind,  direct  proof,  that  is,  the  proof  of  eye- 


472  LAW    OF    EVIDENCE    IN   CRIMINAL   CASES. 

witnesses,  who  see  the  fact  and  can  depose  to  it  upon  their  oaths. 
It  is  impossible,  however,  not  to  say  that  it  is  the  best  proof,  if 
that  proof  is  offered  to  you  upon  the  testimony  of  men  whose 
veracity  you  have  no  reason  to  doubt;  but  on  the  other  hand  it  is 
equally  true  with  regard  to  circumstantial  evidence,  that  the  cir- 
cumstances may  often  be  so  clearly  proved,  so  closely  connected 
with  it,  or  leading  to  one  result  in  conclusion,  that  the  mind  may 
be  as  well  convinced  as  if  it  were  proved  by  eye  witnesses.  This- 
being  a  case  of  circumstantial  evidence,  I  advise  you,'  said  the 
learned  judge,  'as  I  invariably  advise  juries,  to  act  upon  a  rule 
that  yon  are.  first  to  consider  what  facts  are  clearly,  distinctly, 
indisputably  proved  to  your  satisfaction;  and  you  are  to  consider 
whether  those  facts  are  consistent  with  any  other  rational  suppo- 
sition than  that  the  prisoner  is  guilty  of  that  offense.  If  you 
think  that  the  facts  in  this  case  are  all  consistent  with  the  suppo- 
sition that  the  prisoner  is  guilty,  and  can  offer  no  resistance  to 
that,  except  the  character  the  prisoner  has  borne,  and  except  the 
supposition  that  no  man  would  be  guilty  of  so  atrocious  a  crime 
as  that  laid  to  the  charge  of  the  prisoner,  that  cannot  much  influ- 
ence your  minds;  for  we  all  know  that  crimes  are  committed,  and, 
therefore,  the  existence  of  the  crime  is  no  inconsistency  with  the 
other  circumstances,  if  those  circumstances  lead  to  that  result. 
The  point  for  you  to  consider  is,  whether,  attending  to  the  evi- 
dence, you  can  reconcile  the  circumstances  adduced  in  evidence 
with  any  other  supposition  than  that  he  has  been  guilty  of  the 
effense.  If  you  cannot,  it  is  your  bounden  duty  to  find  him 
guilty;  if  you  can,  then  you  will  give  him  the  benefit  of  such 
supposition.  All  that  can  be  required  is,  not  absolute,  positive 
proof,  but  such  proof  as  convinces  you  that  the  crime  has  been 
made  out.' "     See  Wills,  Circ.  Ev.  (6th  ed.)  202-204. 

Blackstone  says:  "All  presumptive  evidence  of  felony  should 
be  admitted  cautiously,  for  the  law  holds  that  it  is  better  that  ten 
guilty  persons  escape  than  that  one  innocent  suffer,  and  Sir 
Matthew  Hale,  in  particular,  lays  down  two  rules  most  prudent 
and  necessary  to  be  observed:  1.  Never  to  convict  a  man  for 
stealing,  etc.;  and  2.  Never  to  convict  any  person  of  murder  or 
manslaughter,  till  at  least  the  body  be  found  dead."  4  Bl.  Com. 
358. 

In  2  Best  on  Presumptions,  p.  780,  it  is  said  that  "every  crim- 
inal charge  involves  two  things;  first,  that  an  offense  has  been 


CORPUS    DELICTI.  473 

committed;  and,  second,  that  the  accused  is  the  author,  or  one  of 
the  authors  of  it;"  and,  the  learned  writer  adds:  "The  identifica- 
tion of  the  body  of  the  deceased  need  not  be  proved  by  witnesses, 
who,  by  an  actual  inspection  of  the  body,  recognize  it  as  the  body 
of  the  person  with  whose  murder  the  prisoner  is  charged;  but  it 
may  be  by  the  same  class  of  proof  as  is  used  to  identify  the  pris- 
oner on  trial,  or  any  other  material  facts.  .  .  .  Indeed,  it  may 
be  said  that  any  proof  that  satisfies  the  jury  that  the  body  is  that 
of  the  deceased  is  sufficient,  as  fragments  of  the  clothing  identi- 
fied as  similar  to  that  worn  by  the  deceased  when  last  seen  alive." 
1  Starkie  on  Evidence,  p.  575,  defines  the  corpus  delicti  as  "the  fact 
that  the  crime  has  been  actually  perpetrated,"  and  3  Greenleaf  on 
Evidence,  §  131,  as  "the  fact  that  a  murder  has  been  committed," 
and  adds  that  the  rule  requires  "unequivocal  and  certain  proof 
that  someone  is  dead."  All  these  cases  and  authors  hold,  with- 
out exception,  that  until  a  criminal  fact  has  been  established, 
"antequam  de  crimine  constiterit"  there  can  be  no  basis  for  j^re- 
sumptive  proof,  but  when,  in  a  case  of  murder,  that  basis  has 
been  certainly  supplied,  the  identity  of  the  victim  and  the  agency 
of  the  prisoner  may  be  shown  by  circumstances. 

So  far  as  I  have  been  able  to  discover,  that  rule  has  always 
been  recognized  and  applied  in  this  country.  A  few  of  the  more 
remarkable  cases  may  be  studied  to  demonstrate  its  wide  preva- 
lence. In  People  v.  Wilson,  3  Park.  Grim.  Rep.  199,  it  appeared 
that  a  dead  body,  with  marks  of  violence  upon  it,  had  been  washed 
ashore.  It  was  alleged  to  have  been  the  body  of  Captain  Palmer 
for  whose  murder  the  prisoner  was  being  tried.  JSTo  direct  evi- 
dence of  that  identity  was  or  could  be  given.  But  the  criminal 
fact  of  a  death,  by  violence,  having  been  fully  established,  the 
identity  of  the  remains  was  proved  by  circumstances.  Personal 
recognition  had  become  impossible,  and  identity  was  established 
by  an  inference  from  resemblances.  The  height  of  deceased  was 
shown,  an  unusual  length  of  face,  and  a  widening  of  the  end  of 
the  little  linger,  to  which,  in  a  general  way,  the  body  corres- 
ponded. But  a  more  important  fact  was  that  the  captain  had 
imprinted  his  name  upon  his  leg  and  arm,  and  in  the  same  por- 
tions of  the  body  found  the  skm  had  been  cut  away,  except  that 
on  the  leg  the  letter  P  remained  visible.  A  brother-in-law  of 
deceased,  who  had  seen  the  body,  was  asked  the  direct  question, 
whose  body  it  was;  but  the  court  would  not   permit   an  answer; 


474  LAW    OF    EVIDENCE    IN   CRIMINAL   CASES. 

saying  that  the  question  was  not  the  ordinary  one  of  personal 
identity,  since  the  body  had  been  submerged  for  five  months,  but 
was  one  of  an  inference  from  resemblances,  which  the  jury  and 
not  the  witness  must  draw.  The  prisoner  was  convicted.  In 
Com.  v.  Webster,  5  Cush.  295,  the  identification  stood  mainly 
upon'a  block  of  teeth  found  in  the  furnace  where  part  of  the  body 
was  consumed.  There  was  no  direct  recognition  of  the  body  by 
any  one,  but  the  circumstantial  evidence  was  very  strong.  I  do 
not  see  how  the  identification  of  the  false  teeth  can  be  deemed 
direct  evidence  of  the  identity  of  the  remains.  It  was  a  fact  from 
which  that  identity  could  be  inferred,  and  the  inference  be  very 
strong,  but  the  conclusion  would  still  be  an  inference.  If  Dr. 
Keep,  the  dentist,  after  examining  the  teeth,  had  been  asked  the 
direct  question  whether  the  mutilated  remains  were  those  of  the 
deceased,  he  could  only  have  answered  in  the  affirmative,  as  a 
judgment  founded  upon  a  process  of  reasoning.  False  teeth  are 
artificial  and  not  natural.  They  may  be  worn  at  one  time  and 
omitted  at  another.  They  may  be  lost  from  the  mouth  and  pass 
into  a  stranger's  possession.  If  their  identity  as  found  among  the 
remains  directly  identified  the  body,  why  did  not  in  the  present 
case  the  proved  identity  of  the  boot  found  on  the  foot  of  the  body 
discovered  directly  identify  that  body?  Is  not  the  difference 
rather  one  of  the  degree  than  of  the  kind  of  proof?  But  in  both 
case's  1  think  the  evidence  was  inferential,  and  cannot  justly  be 
regarded  as  direct.  In  Taylor  v.  State,  35  Tex.  97,  there  was  no 
direct  proof  of  the  identity  of  the  deceased,  but  his  clothing,  hat 
and  papers  were  identified,  and  his  wagon  and  team  and  even  his 
dog  were  found  in  the  prisoner's  possession.  A  still  more  re- 
markable case  was  that  of  State  v.  Williams,  52  N.  C.  440,  where 
with  the  bono  were  found  some  trifling  articles  of  feminine  attire, 
seemingly  insufficient  to  justify  an  inference  of  identity. 

§  298.  Recent  Legislation  on  the  Subject.— The  well  rec- 
ognized  rules  as  to  corpus  delicti  have  assumed  a  statutory  form 
in  the  state  of  New  York,  and  the  Penal  Code  after  defining 
homicide  to  be  the  killing  of  one  human  being  by  the  act,  pro- 
curement  or  omission  of  another,  and  declaring/the  crime  to  class- 
ify under  the  head  of  either  (1)  murder;  (2)  manslaughter;  (3)  ex- 
cusable  homicide;  or  (4)  justifiable  homicide,  proceeds  with  the 
declaration  that,  "no  person  shall  be  convicted  of  manslaughter  or 
murder  unless  the  death  of  the  person  alleged  to  have  been  killed 


CORPUS    DELICTI.  475 

and  the  fact  of  killing  by  the  defendant,  as  alleged,  are  each  estab- 
lished as  independent  facts;  the  former  by  direct  proof  and  the 
latter  beyond  a  reasonable  doubt."  Kew  York  Penal  Code, 
§§  179-181. 

In  construing  a  statute  everything  in  favor  of  the  liberty  and 
the  security  of  the  citizen  and  the  protection  of  the  individual  is 
to  be  liberally  and  comprehensively  interpreted.  Potter's  Dwarr. 
Statutes,  49;  Lieber,  Hermeneutics  [16th  ed.  1880],  chap.  5,  §  134; 
People  v.  Kelly,  24  K  Y.  74,  81,  82;  Boyd  v.  United  States,  116 
TJ.  S.  616,  29  L.  ed.  746. 

"By  the  corpus  delicti,  the  body  or  substance  of  the  offense, 
has  always  been  meant  the  existence  of  a  criminal  fact.  Unless 
such  a  fact  exists  there  is  nothing  to  investigate.  Until  it  is 
proved,  inquiry  has  no  point  upon  which  it  can  concentrate.  In- 
deed, there  is  nothing  to  inquire  about.  But,  when  a  criminal 
fact  is  discovered,  its  existence,  for  the  purpose  of  a  judicial  in- 
vestigation, must  be  established  fully,  completely,  by  the  most 
clear  and  decisive  evidence.  For  otherwise  the  after  reasoning 
founded  upon  it  and  drawing  its  force  from  it  will  be  dangerous, 
fallacious,  and  unreliable.  As  the  weakness  of  the  foundation  is 
more  and  more  intensified,  while  the  superstructure  ascends  and 
the  weight  grows,  so  the  circumstantial  evidence  built  upon  a 
criminal  fact,  not  certain  to  have  existed,  becomes  itself  weak  and 
indecisive,  and  more  and  more  so  as  the  suspicions  expand  and 
extend.  If  somebody  has  been  murdered  a  motive  for  a  murder 
becomes  a  significant  fact,  rendered  more  so  when  identification 
.shows  it  a  motive  for  the  particular  murder.  But  if  the  death  is 
doubtful  the  probative  force  of  a  motive  dwindles  to  mere  suspi- 
cion."    People  v.  Palmer,  109  Is".  Y.  113. 

The  provision  of  the  Penal  Code  in  the  section  above  referred 
to,  which  prohibits  a  conviction  "of  murder  or  manslaughter,  un- 
less the  death  of  the  person  alleged  to  have  been  killed,  and  the 
fact  of  killing  as  alleged,  are  each  established  as  independent  facts; 
the  former  by  direct  proof  and  the  latter  beyond  a  reasonable 
doubt."  does  not  require  direct  proof  of  the  identity  of  the  vic- 
tim, but  only  of  the  death.  Identity  is  not  included  in  the  cor- 
pus  delicti,  and  is  left  open  to  indirect  or  circumstantial  evidence. 
An  intention  to  change  the  rule  of  the  common  law  will  not  he 
presumed  from  doubtful  statutory  provisions;  the  presumption  is 
that  no  such  change  was  intended  unless  the  statute  is  explicit  and 
clear  in  that  direction.     P< <>j>l>'  v.  Palmer,  supra. 


476  LAW    OF    EVIDENCE    IN    CRIMINAL    CASES. 

A  confession  is  no  evidence  of  the  corpus  delicti,  but  only  of 
the  connection  of  the  defendant  with  the  crime;  the  corpus  delicti 
is  a  substantive  independent  fact  in  the  case,  to  be  proved  as  if 
defendant  were  not  a  party  to  the  cause,  and  so  his  unsworn  state- 
ment is  no  more  evidence  of  the  corpus  delicti  than  the  hearsay 
statement  of  any  other  person.  State  v.  Guild,  10  N.  J.  L.  193; 
State  v.  Dubois,  54  Iowa,  363;  May  v.  State,  92  111.  343.  Cir- 
cumstantial evidence  should  be  acted  upon  with  great  caution, 
especially  where  the  public  anxiety  for  the  detection  of  a  great 
crime  creates  an  unusual  tendency  to  exaggerate  facts  and  draw 
rash  inferences.  Pitts  v.  State,  43  Miss.  472.  All  that  the  law 
requires  is  that  the  corpus  delicti  shall  be  proved,  as  any  other 
fact,  that  is,  beyond  a  reasonable  doubt,  and  that  doubt  is  for  the 
jury.  Gray  v.  Com.  101  Pa.  386,  47  Am.  Kep.  733;  Priest  v. 
State,  10  ]Seb.  393;  United  States  v.  Searcey,  26  Fed.  Rep.  435; 
People  v.  Porter,  2  Park.  Crim.  Rep.  14;  Hope's  Case,  1  City 
Hall  Rec.  150;  People  v.  Badgley,  16  Wend.  53;  People  v.  Mc- 
Gloin,  91  K  Y.  242,  Bishop,  Crim.  L.  §  1071. 

The  corroborative  evidence  must  go  to  prove  the  entire  crime, 
and  not  only  one  or  more  of  its  constituent  elements;  and  proof 
.  d  one  clement  is  no  proof  of  another.  People  v.  Plath,  100  N. 
Y.  590.  The  quantum  of  evidence,  aliunde  the  confession,  suffi- 
cient to  convict,  is  not  the  same  as  suffices  to  corroborate  an  ac- 
complice under  section  399  of  the  Criminal  Code,  or  a  female 
under  sections  283  and  286  of  the  Penal  Code.  People  v.  Plath, 
supra;  People  v.  Williams,  1  N.  Y.  Crim.  Rep.  344;  Frazer  v. 
People,  54  Barb.  310.  In  determining  a  question  of  fact  from 
circumstantial  evidence,  the  hypothesis  of  guilt  should  flow  natu- 
rally from  the  facts  proved  and  be  consistent  with  them  all;  and 
the  evidence  must  be  such  as  to  exclude,  to  a  moral  certainty, 
every  hypothesis  but  that  of  guilt  of  the  offense  imputed.  Peo- 
ple v.  Bennett,  49  N.  Y.  137;  People  v.  Stokes,  2  N.  Y.  Crim.  Rep. 
382;  People  v.  Kennedy,  32  X.  Y.  145,  Lawson,  Presumptions, 
569;  Eeans  v.  Evans,  1  Hagg.  Const.  105.  If  the  facts  be  consistent 
with  innocence,  they  are  no  proof  of  guilt.  Ormshy  v.  People, 
53  N.  Y.  475;  People  v.  Courtney,  28  Hun,  593;  Frazer  v.  Peo- 
ple, 54  Barb.  309;  Com.  v.  Holmes,  127  Mass.  424,  34  Am.  Rep. 
491;  Port  v.  Port,  70  111.  484;  Mason  v.  State,  32  Ark.  239;  Car- 
roll v.  Quinn,  13  Md.  379;  Greenwood  v.  Lowe,  7  La.  Ann.  197; 
United  States  v.  The  Burdett,  34  U.  S.  9  Pet.  682,  9  L.  ed.  273. 


CORPUS    DELICTI.  477 

"It  is  insisted  that  under  the  statute  the  corpus  delicti  must  be 
proved,  or  evidence  given  tending  to  prove  it,  wholly  independ- 
ent of  the  confession,  and  that  no  evidence  was  given,  which, 
disconnected  with  the  confessions,  had  a  legal  tendency  to  prove 
the  body  of  the  crime.  It  would  be  a  sufficient  answer  to  this 
point  that  it  is  not  raised  by  any  exception  on  the  trial,  and  it 
clearly  was  not  raised  by  the  exception  to  the  denial  of  a  motion 
for  a  new  trial,  made  after  verdict.  But  we  are  of  opinion  that 
when,  in  addition  to  the  confession,  there  is  proof  of  circumstances 
which,  although  they  may  have  an  innocent  construction,  are 
nevertheless  calculated  to  suggest  the  commission  of  crime,  and 
for  the  explanation  of  which  the  confession  furnishes  the  key, 
the  case  cannot  be  taken  from  the  jury  for  a  non-compliance 
with  the  requirement  of  the  statute.  The  words  of  the  statute, 
'  additional  proof  that  the  crime  charged  has  been  committed,1 
seem  to  imply  that  the  confession  is  to  be  treated  as  evidence  of 
the  corpus  delicti,  that  is,  not  only  of  the  subjective  criminal  act 
but  also  the  criminal  agency  of  the  defendant;  in  other  words,  as 
competent  proof  of  the  body  of  the  crime,  though  insufficient 
without  corroboration  to  warrant  a  conviction.  '  Full  proof,'  said 
Nelson,  Oh.  J.,  in  People  v.  Badgley,  16  Wend.  53,  'of  the  body 
of  the  crime,  the  corpus  delicti,  independently  of  the  confession 
is  not  required  by  any  of  the  cases,  and  in  many  of  them  slight 
corroborating  facts  were  held  sufficient.'  We  are  of  opinion  that 
there  was  evidence  in  addition  to  the  confession,  which  constituted 
'additional  proof  within  the  statute."  People  v.  Jaehne,  103  N. 
Y.  182. 

That  I  have  correctly  stated  what  is  meant  by  the  corpus  di  licti, 
requiring  direct  proof,  and  that  it  never  did  include  the  iden- 
tity of  the  victim,  but  left  that  open  to  indirect,  or  circumstantial 
evidence,  is  shown  by  an  unbroken  and  unvarying  concurrence  of 
authority. 

In  People  v.  Videto,  1  Park.  Crim.  Rep.  609,  Walworth,  Ch.  J., 
says:  "One  rule  however,  which  ought  never  to  be  departed 
from  is,  that  no  one  should  be  convicted  of  murder  upon  circum- 
stantial evidence,  unless  the  body  of  the  person  supposed  to  have 
been  murdered  has  been  found,  or  there  be  other  clear  and  irre- 
sistible proof  that  such  person  is  actually  dead." 

It  does  not  appear  that  this  direction  was  material  on  that  trial, 
and  it  is  cited  only  to  show  how  constantly  the  doctrine  has  been 
received  as  clear  and  undisputed  law. 


47b  LAW    OF    EVIDENCE   IN   CRIMINAL   CASES. 

Iii  Peopli  \.  Wilson,  3  Park.  Crim.  Rep.  207,  the  cook  of  the 
schooner  Eudora  was  indicted  for  the  murder  of  the  captain  upon 
Long  Island  Sound;  after  five  months  a  body  floated  on  shore, 
which  the  prosecution  claimed  was  shown  to  be  that  of  the  mur- 
dered man.  Strong,  ,/.,  who  presided  at  the  trial,  charged  the 
jury  "that  ordinarily  there  could  be  no  conviction  for  murder 
until  the  body  of  the  deceased  was  discovered.  That  there  were 
several  exceptions  to  the  rule,  however,  as  where  the  murder  has 
Urn  on  the  high  seas,  at  a  great  distance  from  the  shore,  and  the 
body  had  been  thrown  overboard,  or  where  the  body  had  been 
entirely  consumed  by  fire,  or  so  far  that  it  was  impossible  to  iden- 
tify it.  But,  in  the  present  case,  the  scene  of  the  supposed 
tragedy  was  near  the  shore,  and  there  was  strong  reason  to  sup- 
pose that  if  a  murder  had  been  committed,  the  body  of  the 
deceased  would  be  discovered.  The  exception  to  the  rule  is, 
therefore,  inapplicable,  and  the  jury  must  be  satisfied  that  the 
body  discovered  .  .  .  was  that  of  the.  murdered  captain, 
before  they  could  convict  the  prisoner." 

in  E<  g.  v.  Tawell,  cited  in  Wills,  Circ.  Ev.  (3d  ed.)  181,  Baron 
Parke  told  the  jury  that  "the  only  fact  which  the  law  requires  to 
be  proved  by  direct  and  positive  evidence  is  the  death  of  the 
party  by  finding  the  body,  or,  when  such  proof  is  absolutely 
impossible,  by  circumstantial  evidence  leading  closely  to  that 
result — as  where  a  body  was  thrown  overboard,  far  from  land, 
when  it  is  quite  enough  to  prove  that  fact  without  producing  the 
body." 

"The  Texas  statute  following  the  liberal  tendency  of  the  Code 
Napoleon  accurately  states  the  rule  as  to  corpus  delicti  that  'no 
person  shall  be  convicted  of  any  degree  of  homicide  unless  the 
body  of  the  deceased,  or  portions  of  it,  are  found  and  sufficiently 
identified  to  establish  the  fact  of  the  death  of  the  person  charged 
to  have  been  killed.'  Texas  Penal  Code,  art.  549.  Now,  we 
t  that  the  death-  of  the  person  charged  to  have  been  killed 
can  he  proved  in  no  other  manner — by  no  other  evidence  or  cir- 
cumstances  than  those  named  in  the  statute.  The  dead  body  or 
a  portion  of  it  must  be  found.  The  body  or  a  portion  thereof 
must  not  only  be  found,  but  must  be  identified  as  the  body  or  a 
portion  of  the  body  of  the  person  charged  to  have  been  killed. 
The  death  of  the  person  must  be  established  by  proof  of  these 
facts,  and  the  death  cannot  be  established  by  any  other  evidence 


CORPUS   DELICTI.  479 

or  circumstance  short  of  such  proof.  This  the  law  requires,  and 
whether  this  provision  be  wise  or  unwise  is  not  for  this  court  to 
determine.  We  will  remark,  however,  that  the  fearful  results 
consequent  upon  any  other  rule  being  adopted  and  followed  are 
well  known  to  all  thoughtful  readers  and  students  of  criminal 
jurisprudence."     Hurt,  J.,  in  Puryear  v.  State,  28  Tex.  App.  73. 

§  299.  Intent  of  the  Rule  Requiring  Proof  of.— The  rule 
that  the  corpus  delicti  must  be  proved  beyond  a  reasonable  doubt 
was  intended  as  a  shield  to  prisoners,  and  must  never  be  used  as 
a  sword.  In  the  language  of  Lord  Hale,  "tutius  semper  est 
errare  in  acquittando,  quam  inpuniendo,  ex  parte  misericordice 
quam  ex  parte  justitice" 

The  people  in  every  case  of  homicide  must  prove  the  corpus 
delicti  beyond  a  reasonable  doubt,  and  if  the  prisoner  claims  a 
justification  he  must  take  upon  himself  the  burden  of  satisfying 
the  jury  by  a  preponderance  of  evidence.  He  must  produce  the 
same  degree  of  proof- that  would  be  required  if  the  blow  inflicted 
had  not  produced  death,  and  he  had  been  sued  for  assault  and 
battery,  and  had  set  up  a  justification.  When  a  man  takes  human 
life,  upon  which  the  law  sets  a  high  value,  it  is  not  sufficient  for 
him  to  raise  a  reasonable  doubt  whether  he  was  justifiable  or  not 
but  he  must  go  one  step  further,  and  give  satisfactory  evidence 
that  he  was  justified.  This  rule  is  sufficiently  humane  to  the 
prisoner,  and  at  the  same  time  gives  some  protection  to  human 
life. 


CHAPTER  XXXIX. 
EVIDENCE  OF  IDENTITY. 

§  300.  A  Cautionary  Paragraph. 

301.  Circumstances  from,  ivliich  Identity  may  he  Inferred. 

302.  Voice  as  Evidence  of  Identity. 

a.   Telephonic  Communications. 

303.  Dress  as  a  Means  of  Identification. 

304.  Perplexing  Nature  of  this  Grade  of  Evidence. 

305.  Cautionary  Suggestimis  of  Mr.  Justice  Taylor. 

§  300.  A  Cautionary  Paragraph. — "This  branch  of  our  sub- 
ject, simple  as  it  may  seem,  and  free  from  difficulty  in  the  estima- 
tion of  those  unaccustomed  to  reasoning  on  the  topic,  is,  on  the 
contrary,  perhaps  one  of  the  most  difficult  questions  with  which 
courts  and  juries  are  called  upon  to  deal.  The  change  in  the 
appearance  of  the  person  whose  identity  is  in  question,  wrought 
by  age,  mode  of  life,  hardships,  toil  and  care,  sometimes  coupled 
with  a  skillful  disguise ;  again,  the  want  of  perception  and  dis- 
crimination in  the  identifying  witnesses;  these  and  numerous 
other  causes  have  led  to  numerous  cases  of  mistaken  identity, 
both  in  ancient  and  modern  times,  and  in  all  civilized  countries, 
as  we  shall  see,  in  both  civil  and  criminal  causes.  Sometimes 
position  and  estates  are  acquired  by  fraud,  and  again,  the  innocent 
is  punished,  and  not  unfrequently  the  guilty  escapes,  from  a  mis- 
take in  the  personal  identity.  These  questions  are  fraught  with 
their  dangerous  consequences,  and  difficult  in  their  solution,  and 
are  of  the  greatest  importance  in  the  affairs  of  men.  But  where 
is  the  remedy?  It  lies  alone  in  caution  and  prudence.  Observa- 
tion and  sad  experience  admonish  courts  and  juries  to  the  use  of 
the  utmost  care,  caution  and  prudence."     Harris,  Identification, 

The  cautionary  suggestions  of  this  paragraph  are  abundantly 
emphasized  by  a  brief  reference  to  the  celebrated  Ticliborne  Case, 
Feb.  28,  1872,  MS.  That  an  illiterate  roving  tramp  could  so 
impose  upon  people  of  marked  intelligence  as  to  induce  eighty- 
five  witnesses  including  the  mother  of  the  real  heir  to  testify  as 
to  his  identity,  argues  an  appalling  defect  in  human  sagacity. 

480  " 


EVIDENCE    OF    IDENTITY.  481 

For  103  days  this  remarkable  case  engrossed  the  attention  of  one 
of  the  highest  tribunals  in  Great  Britain;  and  nothing  but  the 
searching  and  drastic  cross-examination  to  which  the  imposter 
was  subjected,  dispelled  the  illusions  that  mistaken  identity  had 
evolved.  The  rule  obtains  in  most  of  our  jurisdictions  that  non- 
expert testimony  is  admissible  upon  all  questions  of  identity. 
The  exceptions  to  this  rule  will  be  hereafter  considered;  but  in 
support  of  the  general  proposition  we  will  cite  the  following: 
Cunningham  v.  Hudson  River  Bank,  21  Wend.  557;  Tate  v. 
Missouri,  K.  &  T.  R.  Co.  64  Mo.  149;  Hblten  v.  Lake  County 
Comrs.  55  Ind.  194;  State  v.  Vittum,  9KH.  519;  Com,  v.  Dow- 
dican,  114  Mass.  237;  Curtis  v.  Chicago  &  N.  W.  R.  Co.  18  Wis. 
312;  Elliott  v.  Van  Buren,  33  Mich.  49,  20  Am.  Rep.  668;  Cooper 
v.  State,  53  Miss.  393;  People  v.  Rolf e,  61  Cal.  541;  IlaUahan  v. 
New  York,  L.  K  &  W.  R.  Co.  102  K  Y.  194;  Funston  v.  Chi- 
cago, R.  I.  cfc  P.  R.  Co.  61  Iowa.  152;  Clifford  v.  Richardson, 
18  Vt.  620;  Cooper  v.  State,  23  Tex.  339;  Alexander  v.  Mt. 
Sterling,  71  111.  366;  Cottrill  v.  Myrick,  12  Me.  222;  Colee  v 
State,  75  Ind.  511. 

The  elaborate  opinion  in  the  Tichborne  Case,  supra,  while 
distinguished  by  a  great  parade  of  unusual  learning  was  rendered 
somewhat  perplexing  and  obscure  by  the  subtlety  of  the  distinc- 
tions and  the  very  artificial  texture  of  the  argument. 

§  301.  Circumstances  from  which  Identity  may  be  In- 
ferred.—"The  liability  to  mistake  must  necessarily  be  greater 
where  the  question  of  identity  is  matter  of  deduction  and  infer- 
ence, than  where  it  is  the  subject  of  direct  evidence.  The  cir- 
cumstances from  which  identity  may  be  thus  inferred  are  innumer- 
able, and  admit  of  only  a  very  general  classification,  of  which  the 
following  are  perhaps  the  most  remarkable  heads. 

"Family  likeness  has  always  been  insisted  upon  as  a  reason  for 
inferring  parentage  and  identity.  In  the  Douglas  Case,  Lord 
Mansfield  said:  'I  have  always  considered  likeness  as  an  argu- 
ment of  a  child's  being  the  son  of  a  parent;  and  the  rather  as  the 
distinction  between  individuals  in  the  human  species  is  more  dis- 
cernible than  in  other  animals;  a  man  may  survey  ten  thousand 
people  before  he  sees  two  faces  perfectly  alike,  and  in  an  army  of 
a  hundred  thousand  men  every  one  may  be  known  from  another. 
If  there  should  be  a  likeness  of  feature,  there  may  be  a  discrimi- 
31 


482  LAW    OF    EVIDENCE   IN    CRIMINAL   CASES. 

nancy  of  voice,  a  difference  in  the  gestures,  the  smile,  the  other 
various  tilings;  whereas  a  family  likeness  runs  generally  through 
all  these,  for  in  everything  there  is  a  resemblance,  as  of  features, 
size,  attitude,  and  action.'  But  in  a  case  in  Scotland,  where  the 
question  was  who  was  the  father  of  a  certain  woman,  an  allegation 
that  she  had  a  strong  resemblance  in  the  features  of  the  face  to 
one  of  the  tenants  of  the  alleged  father  was  held  not  to  be  relev- 
ant, as  being  too  much  a  matter  of  fancy  and  loose  opinion  to 
form  a  material  article  of  evidence.  Tait,  Ev.  443.  And,  in 
another  Scottish  case,  a  trial  for  child-murder,  it  was  permitted, 
after  proof  that  the  child  had  six  toes,  to  ask  a  witness  whether 
any  member  of  the  prisoner's  family  had  supernumary  fingers  and 
toes;  though  the  inference  to  be  deduced  was  evidently  only  mat- 
ter of  opinion.     1  Dickson,  Ev.  14. 

"  .  .  .  Circumstances  frequently  contribute  to  identifica- 
tion, by  confining  suspicion  and  limiting  the  range  of  inquiry  to 
a  class  of  persons,  as  where  crimes  have  been  committed  by  left- 
handed  persons;  or  where,  notwithstanding  simulated  appearances 
of  external  violence  and  infraction,  the  offenders  must  have  been 
domestics;  as  in  the  case  mentioned  on  a  former  page,  of  two  per- 
sons convicted  of  murder,  who  created  an  alarm  from  within  the 
house;  but  upon  whom,,  nevertheless,  suspicion  fell,  from  the  cir- 
cumstance that  the  dew  on  the  grass  surrounding  the  house  had 
not  been  disturbed  on  the  morning  of  the  murder,  which  must 
have  been  the  case  had  it  been  committed  by  any  other  than 
inmates."     Wills,  Circ.  Ev.  117. 

§  302.  Yoice  as  Evidence  of  Identity. — "In  a  Texas  case  on 
an  indictment  for  arson  in  the  burning  of  a  house  and  fences  in 
the  night  time,  the  owner  hurried  to  the  scene,  and  was  shot  at  by 
the  accused,  he  returned  the  fire,  when  he  heard  bitter  oaths  and 
vociferations  emanating  from  the  accused,  whose  voice  he  recog- 
nized and  identified,  having  known  him  for  thirteen  years  and 
lived  within  half  a  mile  of  him  for  many  years.  The  court  held 
that  positive  recognition  of  the  defendant's  voice,  by  Que  who  was 
familiar  with  it,  might  suffice  to  identify  the  guilty  party.  In  a 
Massachusetts  case  the  accused  was  indicted  for  an  attempt  at 
arson  in  burning  a  house  belonging  to  one  Farnham,  whose  wife 
testified  that  she  heard  the  voice  of  the  accused  on  the  day  before 
the  attempt  at  night,  had  heard  it  but  the  one  time,  and  again, 
that  night,  and  recognized  it  and  could  identify  it.     This  was  held 


EVIDENCE    OF    IDENTITY.  483 

competent."  Harris,  Identification,  §  14,  citing  Davis  v.  State, 
15  Tex.  App.  594;  Com.  v.  Hayes,  138  Mass.  186. 

A  defendant  in  a  criminal  case,  not  under  oath  as  a  witness,  is 
not  entitled  to  repeat  something  in  the  presence  of  the  jury,  to- 
rebut  evidence  of  a  witness  for  the  government,  who  testified  that 
he  identitied  the  defendant  by  his  voice.  Com.  v.  Scott,  123 
Mass.  222.      ' 

"Where  the  prisoner  was  in  jail  at  the  same  time  with  the  wit- 
ness, though  not  in  the  same  room,  the  witness  testified  to  a  con- 
versation with  the  prisoner  in  which  the  prisoner  confessed  his 
guilt.  He  testified  that  he  conversed  with  the  accused  through 
the  soil  pipes  of  the  jail,  and  that  he,  the  prisoner,  confessed  or 
admitted  to  him,  the  witness,  that  he  was  guilty  of  the  charge  on 
which  he  had  been  cast  into  prison,  and  that  he  knew  the  prisoner 
from  his  voice.  The  court  upon  this  statement,  with  seeming- 
reluctance,  permitted  it  to  go  to  the  jury.  Ht  Id.  that  it  was  com- 
petent to  go  to  the  jury,  and  that  it  was  their  province  to  con- 
sider it,  and  give  it  such  weight  as  it  might  be  entitled  to." 
Harris,  Identification,  §  554,  citing  Brown  v.  Com.  76  Pa.  319. 
Similarly  in  a  recent  Massachusetts  case,  the  testimony  of  a  wit- 
ness, identifying  the  defendant  by  his  voice,  was  held  competent. 
The  weight  of  it  was  for  the  jury,  but  it  was  properly  submitted 
to  them,  to  be  considered  in  connection  with  other  evidence  of 
identity.  Com.  v.  Williams,  105  Mass.  62;  Com.  v.  Hayes,  138 
Mass.  L83. 

In  ( 'inn.  v.  Scott,  supra,  the  ruling  was  to  the  effect  that  though 
identification  might  be  established  by  means  of  the  voice,  experi- 
ments in  the  court  room  were  inadmissible.  In  Rex  v.  Harrison, 
12  How.  St.  Tr.  850,  conviction  rested  in  part  on  identification  of 
voice.  See  as  to  identification  by  voice,  3  Whart.  &  S.  Medical 
Jurisprudence  (4th  ed.)  §  634;  Whart.  Crim.  Ev.  §  803,  note. 

a.  Telephonic  Communications. — The  authorities  upon 
the  subject  of  the  telephone  in  evidence,  although  meagre, 
voice  but  one  sentiment.  They  one  and  all  recognize  the  ex- 
extreme  necessity  of  upholding  the  validity  of  telephonic  commu- 
nications to  impress  the  characteristics  of  an  admission,  confession, 
statement  or  contract,  and  will  admit  the  telephonic  message  in 
evidence;  first  where  the  parties  are  identified  by  means  of  the 
the  voice;  and  secondly  on  the  well  recognized  principle  of  agency. 
As  regards  identification,  it  may  be  said  that  notwithstanding  the 


484  LAW    OF    EVIDENCE    IN    CRIMINAL    CASES. 

metallic  tone  transmitted  under  certain  atmospheric  conditions  it 
i-  matter  of  common  notoriety  that  the  human  voice  can  be  easily 
discerned,  while  as  regards  the  ground  of  agency,  it  is  very  appar- 
ent that  under  well  recognized  rules  governing  that  subject,  the 
parties  can  be  made  to  sustain  the  relation  of  principle  and  agent 
in  most  if  not  all  the  cases  that  arise.  See  Oskam/p  v.  Gadsden, 
(Neb.)  17  L.  R.  A.  440;  Missouri  Pac.  P.  Co.  v.  Ileidenheimer, 
82  Tex.  195;  Sullivan  v.  Kuyhendall,  82  Ky.  483,  56  Am.  Rep. 
901. 

"Courts  of  justice  do  not  ignore  the  great  improvements  in  the 
means  of  intercommunication  which  the  telephone  has  made.  Its 
nature,  operation  and  ordinary  uses,  are  facts  of  general  scientific 
knowledge,  of  which  the  courts  will  take  judicial  notice  as  part  of 
public  contemporary  history.  When  a  person  places  himself  in 
connection  with  the  telephone  system  through  an  instrument  in 
his  office,  he  thereby  invites  communication,  in  relation  to  his 
business,  through  that  channel.  Conversations  so  held  are  admis- 
sible in  evidence,  as  personal  interviews  by  a  customer  with  an 
unknown  clerk  in  charge  of  an  ordinary  shop  would  be,  in  rela- 
tion to  the  business  there  carried  on.  The  fact  that  the  voice  at 
the  telephone  was  not  identified  does  not  render  the  conversation 
inadmissible.  The  ruling  here  announced  is  intended  to  deter- 
mine merely  the  admissibility  of  such  conversations  in  such  cir- 
cumstances, but  not  the  effect  of  such  evidence  after  its  admission. 
It  may  be  entitled,  in  each  instance,  to  much  or  little  weight,  in 
the  estimation  of  the  triers  of  fact,  according  to  their  views  of  its 
credibility,  and  of  the  other  testimony  in  support  or  in  contradic- 
tion of  it."  Barclay,  J.,  in  Wolfe  v.  Missouri  Pac.  R.  Co.  3  L. 
R.  A.  539,  97  Mo.  473,  10  Am.  St.  Rep.  331. 

From  a  trenchant  criticism  on  this  case  by  the  editor  of  the  New 
York  Law  Journal,  we  extract  the  following  :  "It  is  evident  that 
a  clerk  in  an  ordinary  shop,  in  apparent  charge  thereof,  has  a 
somewhat  different  authority  to  speak  for  his  employer  than  an 
unknown  person  speaking  over  a  telephone.  In  each  case  it  is  a 
question  of  presumptive  evidence,  but  the  presumption  is  very 
much  stronger  in  the  case  of  the  clerk  in  the  store  than  of  the 
speaker  over  the  telephone.  The  question  as  to  where  is  the  clerk 
is  absolutely  determined;  as  to  where  is  the  speaker  over  the  tele- 
phone is  only  a  matter  of  very  great  probability.  On  the  second 
point,  that  an  identification  of  the  voice  of  the  speaker  through 


EVIDENCE   OF    IDENTITY.  485 

tne  telephone  is  not  necessary  to  make  his  declarations  admissible, 
we  think  the  court  went  to  a  very  great  extreme,  and  we  doubt 
whether  this  ruling  should  be  followed." 

Evidence  of  an  alleged  conversation  by  telephone  with  one  of 
the  defendants,  fully  identified  by  his  voice,  is  not  to  be  excluded 
on  the  ground  that  it  is  not  shown  that  the  person  conversed  with 
was  in  fact  one  of  the  defendants,  when  that  fact  sufficiently  ap- 
pears by  the  testimony  of  another  of  the  defendants.  Davis  v. 
Walter,  70  Iowa,  465. 

The  magnitude  of  the  interests  involved,  the  prominence  of  the 
parties  under  accusation,  the  national  reputation  of  those  indirectly 
involved,  the  eminence  of  the  counsel  employed  and  the  excep- 
tional ability  of  the  presiding  judge  have  invested  the  celebrated 
case  of  People  v.  Ward,  3  N.  Y.  Crim.  Rep.  483,  with  unusual 
interest.  Among  the  many  incidents  of  that  trial,  hotly  contested, 
arose  over  the  admission  in  evidence  of  an  alleged  conversation 
over  the  wire  between  the  then  president  of  the  Marine  Bank  and 
the  defendant  Ferdinand  Ward.  The  Hon.  Benjamin  F.  Tracey, 
subsequently  of  the  New  York  court  of  appeals  strenuously  op- 
posed the  reception  of  this  evidence,  and  the  court  in  the  person 
of  the  distinguished  Mr.  Justice  Barrett  promptly  overruled  the 
objection  and  admitted  the  conversation  in  evidence.  This  ruling 
has  excited  vehement  controversy  and  elicited  a  great  amount 
of  comment,  wise  and  otherwise;  but  the  decision  itself  has  never 
been  shaken;  and  the  contention  that  has  surged  around  it,  has 
failed  to  impair  either  its  logic  or  its  justice.  Refining  causists 
have  seriously  contended  that  a  distinction  should  be  recognized 
in  criminal  and  civil  cases;  but  such  argument  seems  grounded  in 
mere  mawkish  sentimentalism  without  even  a  granule  of  common 
sense  in  its  support.  See  Rice,  Civil  Evidence,  chap.  03,  title 
"Telephone." 

§  303.  Dress  as  a  Means  of  Identification. — "This  is  usu- 
ally one  of  the  first  circumstances  observed  in  the  appearance  <»i 
a  person,  and,  where  it  is  in  any  degree  peculiar,  furnishes  im- 
portant means  of  identification.  ...  It  is  the  exterior  cloth- 
ing, however,  including  the  hut,  which  ordinarily  makes  the  first 
and  most  lasting  impression  upon  the  sense  of  sight.  An  over- 
coat, from  its  size,  will  soonest  attract  attention,  and  frequently  is 
the  only  portion  of  the  clothing  which  is  distinctly  visible.  Hence 
it  is  constantly  mentioned  in  testimony  descriptive  of  the  persons 


486  LAW    OF    EVIDENCE    IN    CRIMINAL    CA.SES. 

of  assailants  and  other  offenders.  The  exterior  clothing,  like  the 
size,  is  also  frequently  distinguishable  by  very  imperfect  or  tran- 
sient lio-ht.  But,  in  one  respect,  this  circumstance  of  dress  is  less 
reliable  than  other  observed  appearances;  it  being  frequently 
assumed  for  the  very  purpose  of  disguise,  and  laid  aside  or  de- 
stroyed after  the  crime  has  been  perpetrated.  The  absence  of  an 
article  of  apparel  usually  worn  out  of  doors,  such  as  a  hat,  consti- 
tutes another  observable  circumstance  by  which  a  person  may  be 
identified."     Burrill,  Circ.  Ev.  639. 

§  304.  Perplexing  Nature  of  this  Grade  of  Evidence.— 
Evidence  of  identity  should  be  as  far  certain  as  human  recollec- 
tion under  the  most  favorable  circumstances  will  permit.  The 
books  are  full  of  instances  where  inaccurate  evidence  as  to  identity 
has  consigned  unfortunate  beings  to  the  prison  and  the  gibbet.  3 
Greenl.  Ev.  §  30;  Wills,  Circ.  Ev.  chap.  47;  Nichols  v.  People,  17 
K  Y.  114;  McCamey  v.  People,  83  N.  Y.  408,  38  Am.  Rep.  456. 

Questions  of  identity  are  often  perplexing  and  doubtful,  as  ob- 
serve from  the  following  cases  : 

The  case  of  Martin  Guerre,  heard  before  the  Parliament  of 
Toulouse  in  1850.  In  this  case  Arnauld  Dutille,  an  adventurer, 
imposed  successfully  on  the  wife  of  Guerre  as  her  husband  and 
had  children  by  her.  Several  hundred  witnesses  were  examined 
and  it  was  only  the  arrival  of  the  true  husband  that  developed 
the  deceit.     1  Beck,  Medical  Jurisprudence  (13th  ed.)  674. 

Case  of  Sieur  De  Caille,  cited  by  same  author,  page  675;  Case 
of  /Salome  Muller,  heard  before  the  supreme  court  of  Louisiana, 
May  term,  1S45.  See  Beck,  Medical  Jurisprudence  (13th  ed.) 
683;  Case  of  Shejpardson  (Beck,  page  683);  the  Lowell  case,  Len- 
aquez  case,  and  the  negro  case  cited  by  Beck,  pages  684,  685.  See 
also  Munsell's  Cases  of  Personal  Identity,  published  in  Albany  in 
1854.  People  v.  Wiggins,  1  N.  Y.  Crim.  Rep.  290,  affirmed  in 
92  N.  Y.  656,  1  N.  Y.  Crim.  Rep.  296. 

§  305.  Cautionary  Suggestions  of  Mr.  Justice  Taylor.— 
"The  first  degree  of  evidence,  and  that  which,  though  open  to 
error  and  misconception,  is  obviously  most  satisfactory  to  the  mind 
is  afforded  by  our  own  senses.  'Believe  half  what  you  yourself 
see,  and  a  twentieth  part  of  what  you  hear  from  others,'  is  a 
maxim,  which  reflects  severely  upon  human  intelligence  and  ve- 
racity, but  which,  nevertheless,  is  founded  in  the  main  upon  the 
experience  of  life,  and  marks  the  vast  distinction  that  obtains  be- 


EVIDENCE   OF   IDENTITY.  487 

tween  a  knowledge  of  facts  derived  from  actual  perception,  and 
the  belief  of  the  existence  of  facts  resting  on  information.  .  .  . 
"These  observations  apply  to  all  cases,  in  which  the  guilt  or  inno- 
cence of  the  prisoner  depends  upon  the  identity  or  comparison  of 
two  articles  found  in  different  places;  as,  for  example,  the  wad- 
ding of  a  pistol  with  portions  of  a  torn  letter  found  on  the  person 
of  the  accused,  or  the  fractured  bone  of  a  sheep  with  mutton 
found  in  his  house,  or  fragments  of  dress  with  his  rent  garment, 
or  damaged  property  with  the  instrument  by  which  the  damage 
is  supposed  to  have  been  effected.  In  all  these,  and  the  like  cases 
it  is  highly  expedient,  if  possible,  to  produce  to  the  court  the  arti- 
cles sought  to  be  compared;  and  although  the  law,  in  demanding 
the  production  of  the  best  evidence,  does  not  expressly  require 
that  this  course  should  be  adopted,  but  permits  a  witness  to  testify 
as  to  his  having  made  the  comparison,  without  first  proving  that 
the  article  cannot  be  produced  at  the  trial,  their  non-production, 
when  unexplained,  may  often  generate  a  suspicion  of  unfairness, 
and  will  always  furnish  an  occasion  for  serious  comment."  See 
1  Taylor,  Ev.  §§  554,  555,  citing  Armory  v.  Ddami/'ie,  1 
Strange,  504;  1  Smith,  Lead.  Cas.  (Sth  Am.  ed.)  "374. 


CHAPTEK   XL. 
CONFESSIONS,    CONDUCT   AND   DEMEANOR  OF   THE  ACCUSED. 

§  306.   The  Term  "Confessions"  Defined. 

307.  Confessions  must  be  Voluntary. 

308.  Judge  to  Decide  if  Confession  is  Voluntary. 

309.  Presumption  as  to. 

310.  If  Elicited  by  Fear  or  Menace  should  be  Rejected. 

311.  Great  Caution  Enjoined  in  Receiving. 

312.  Province  of  Court  and  Jury  with  Reference  to. 

313.  Confessions  not  Conclusive. 

314.  Credibility  of  the   Witnesses  Proving  may  be  Examined. 

315.  Confessions  under  Intoxication. 

316.  Confessions  Obtained  by  Improper  Influence. 

317.  New  York  Rule  Relative  to. 

318.  Demeanor  of  the  Accused  ivhen  under  Arrest — the  Effect 

of  Silence. 

§  306.  The  Term  "Confessions"  Defined.— A  voluntary 
confession  is  one  proceeding  from  the  spontaneous  suggestion  of 
the  party's  own  mind,  free  from  the  influence  of  any  extraneous 
disturbing  cause.  People  v.  McMahon,  15  N.  Y.  384;  People  v. 
Chapleau,  121  N.  Y.  266. 

"It  is  the  voluntary  declaration  made  by  a  person  who  has  com- 
mitted a  crime  or  misdemeanor,  to  another,  of  the  agency  or 
participation  he  had  in  the  crime."  People  v.  Strong,  30  Cal. 
151.  And  in  delivering  the  opinion  of  the  court  in  People  v. 
Parton,4Q  Cal.  632,  McKinstry,  J.,  said:  "A  confession  is  a 
person's  declaration  of  his  agency  or  participation  in  a  crime. 
The  term  is  restricted  to  acknowledgments  of  guilt." 

Prima  facie,  all  confessions  are  voluntary,  and  it  is  for  the 
partv  objecting  to  their  admission  as  evidence  to  show  that  they 
were  uttered  under  such  pressure  of  hope  or  fear  as  to  raise  a 
doubt  of  their  accuracy.  It  is  undoubtedly  the  duty  of  the  court 
to  guard  carefully  the  rights  of  a  defendant  in  this  respect;  and 
more  especially  so  when  the  prisoner  is  in  the  custody  of  the  law 
and  the  hope  or  fears  are  supposed  to  be  raised  by  an  offer  of  the 
law.     The  fact  that  a  defendant  may  think  it  will  be  better  for 

488 


CONFESSIONS,  CONDUCT   AND    DEMEANOR   OF    THE   ACCUSED.       489 

him  if  he  confesses,  or  thinks  it  will  be  worse  for  him  if  he  does 
not  confess,  is  immaterial,  if  that  condition  of  mind  is  brought 
about  by  his  own  independent  reasoning.  It  is  when  that  state 
of  mind  is  induced  by  promises  or  threats  or  other  inducement 
from  without,  that  the  confession  is  to  be  rejected.  Com.  v. 
Sego,  125  Mass.  210. 

Confessions  of  the  prisoner  are  receivable  in  evidence,  upon  the 
presumption  that  a  person  will  not  make  an  untrue  statement 
against  his  own  interest.     1  Phil.  Ev.  (9th  ed.)  397. 

§  307.  Confessions  must  be  Voluntary.— To  render  confes- 
sions of  a  party  charged  with  crime  admissible  against  him,  it 
must  be  clearly  shown  that  they  were  free  and  voluntary.  Coffee 
v.  State,  25  Fla.  501;  Murray  v.  State,  25  Fla.  528.  This  rule 
will  receive  further  vindication  as  we  proceed. 

Sir  William  Blackstone  in  a  well  known  passage,  says :  "In 
cases  of  felony,  confessions  are  regarded  as  the  weakest  and  most 
suspicious  of  all  testimony ;  very  liable  to  be  obtained  by  artifice, 
false  hopes,  promises  of  favor,  menaces;  seldom  remembered 
accurately  or  reported  with  precision,  and  incapable  in  their  nat- 
ure of  being  disproved  by  other  negative  evidence."  4  Bl.  Com. 
357.  It  is  to  be  observed  in  the  first  place  that  Blackstone  uses 
this  language  in  connection  with  his  criticisms  upon  state  trials 
for  treason  in  England,  and,  although  he  intends  his  observations 
to  have  a  general  application  to  all  cases  of  felony,  he  regarded 
them  as  primarily  to  be  considered  in  state  trials  for  treason. 
But  the  annotator  upon  this  text  of  Blackstone  thus  remarks  in  a 
note:  "It  seems  to  be  now  clearly  established  that  a  free  and 
voluntary  confession  of  a  person  accused  of  an  offense  whether 
made  before  his  apprehension  or  after,  whether  on  a  judicial  ex- 
amination or  after  commitment,  whether  reduced  into  writing  or 
not;  in  short,  that  any  voluntary  confession,  made  by  a  prisoner 
to  any  person,  at  any  time  or  place,  is  strong  evidence  against 
him,  and,  if  satisfactorily  proved,  sufficient  to  convict  without  any 
corroborating  circumstances.  But  the  confession  must  be  volun- 
tary, not  obtained  by  improper  influence,  nor  drawn  from  the 
prisoner  by  means  of  a  threat  or  promise;  for,  however  slight  the 
promise  or  threat  may  have  been,  a  confession  so  obtained  cannot 
be  received  in  evidence,  on  account  of  the  uncertainty  and  doubt 
whether  it  was  not  made  rather  from  a  motive  of  fear  or  interest, 
than  from  a  sense  of  guilt."     Citing  Phil.  Ev.  80.     Such  undoubt- 


490  LAW    OF    EVIDENCE    IN    CRIMINAL    CASES. 

cdly  is  the  rule  as  enunciated  by  the  most  authoritative  text-writ- 
ers.    People  v.  Bennett,  37  N.  Y.  117,  93  Am.  Dec.  551. 

"No  confession  is  deemed  to  be  voluntary  if  it  appears  to  the 
judge  to  have  been  caused  by  any  inducement,  threat  or  promise, 
proceeding  from  a  person  in  authority,  and  having  reference  to 
the  charge  against  the  accused  person,  whether  addressed  to  him 
directly  or  brought  to  his  knowledge  indirectly;  and  if  (in  the 
opinion  of  the  judge)  such  inducement,  threat,  or  promise,  gave 
the  accused  person  reasonable  grounds  for  supposing  that  by  mak- 
ing a  confession  he  would  gain  some  advantage  or  avoid  some  evil 
in  reference  to  the  proceedings  against  him.  But  a  confession  is 
not  involuntary,  only  because  it  appears  to  have  been  caused  by 
the  exhortations  of  a  person  in  authority  to  make  it  as  a  matter 
of  religious  duty,  or  by  an  inducement  collateral  to  the  proceed- 
ing, or  by  inducements  held  out  by  a  person  not  in  authority. 
The  prosecutor,  officers  of  justice  having  the  prisoner  in  custody, 
magistrates,  and  other  persons  in  similar  positions,  are  persons  in 
authority.  The  master  of  the  prisoner  is  not  as  such  a  person  in 
authority,  if  the  crime  of  which  the  person  making  the  confession 
is  accused  was  not  committed  against  him.  A  confession  is 
deemed  to  be  voluntary  if  (in  the  opinion  of  the  judge)  it  is  shown 
to  have  been  made  after  the  complete  removal  of  the  impression 
produced  by  any  inducement,  threat,  or  promise  which  would 
otherwise  render  it  involuntary.  Facts  discovered  in  consequence 
of  confessions  improperly  obtained,  and  so  much  of  such  confes- 
sions as  distinctly  relate  to  such  facts,  may  be  proved."  Stephen, 
Dig.  art.  22. 

While  some  of  the  adjudged  cases  indicate  distrust  of  confes- 
sions which  are  not  judicial,  it  is  certain,  as  observed  by  Baron 
Parke  in  Reg.  v.  Baldry,  2  Den.  C.  C.  430,  445,  that  the  rule 
against  their  admissibility  has  been  sometimes  carried  too  far,  and 
its  application,  justice  and  common  sense  has  too  frequently  been 
sacrificed  at  the  shrine  of  mercy.  A  confession,  if  freely  and 
voluntarily  made,  is  evidence  of  the  most  satisfactory  character. 
"Such  a  confession,"  said  Eyre,  G.  _Z>.,  Rex  v.  WarickshaU,  1 
Leach,  C.  C.  263,  "is  deserving  of  the  highest  credit,  because  it  is 
presumed  to  flow  from  the  strongest  sense  of  guilt  and,  therefore, 
it  is  admitted  as  proof  of  the  crime  to  which  it  refers." 

x\.  confession  is  presumed  to  be  voluntary  unless  the  contrary  is 
shown,  or  something  appears  in  the  confession  or  its  attendant 


CONFESSIONS,  CONDUCT    AND    DEMEANOR   OF    THE    ACCUSED.       491 

circumstances  to  combat  such  presumption.  State  v.  Meyers,  99 
Mo.  107;  People  v.  Barker,  60  Mich.  277.  And  the  jury  are  to 
determine  for  themselves  whether  the  confession  was  made  freely 
and  voluntarily,  without  any  influence  of  hope  or  fear;  that  if  so, 
they  could  consider  it,  but  if  not,  it  is  no  evidence.  This  was  a 
distinct  recognition  of  the  rule  on  the  subject  found  in  Holsen- 
bake  v.  State,  45  G-a.  44;  Stallmgs  v.  State,  47  Ga.  572;  Mitchell 
v.  State,  79  Ga.  730;  Bailey  v.  State,  80  Ga.  359.  In  any  circum- 
stance, if  information  derived  from  a  confession  leads  to  a  discov- 
ery of  material  facts  which  go  to  prove  the  commission  of  the 
crime  alleged,  so  much  of  the  confession  as  strictly  relates  to  the 
facts  discovered,  and  the  facts  themselves,  are  admissible  in  evi- 
dence, although  the  confession  may  not  be  shown  to  have  been 
voluntary.,    Lowe  v.  State,  88  Ala.  8. 

§  308.  Judge  to  Decide  if  Confession  is  Voluntary.— 
When  a  confession,  is  offered  in  evidence,  the  question  whether  it 
is  voluntary  is  to  be  decided  primarily  by  the  presiding  justice. 
If  he  is  satisfied  that  it  is  voluntary,  it  is  admissible;  otherwise  it 
should  be  excluded.  When  there  is  conflicting  testimony,  the 
humane  practice  is  for  the  judge,  if  he  decides  that  it  is  admissi- 
ble, to  instruct  the  jury  that  they  may  consider  all  the  evidence, 
and  that  they  should  exclude  the  confession,  if,  upon  the  whole 
evidence  in  the  case,  they  are  satisfied  that  it  was  not  the  volun- 
tary act  of  the  defendant.  Com.  v.  Cuffee,  108  Mass.  285;  Com. 
v.  Nott,  135  Mass.  269;  Com.  v.  Smith,  119  Mass.  305;  Com.  v. 
Preece,  140  Mass.  276. 

§  309.  Presumption  as  to. — In  the  absence  of  all  evidence, 
the  presumption  is  that  a  confession  is  voluntary;  and  when  the 
party  confessing  objects  that  confessions  are  not  voluntary,  he  is 
called  upon  to  show  at  least  enough  to  rebut  such  presumption. 
Com.  v.  Culver,  126  Mass.  464. 

A  confession  freely  and  voluntarily  made  is  evidence  of  the 
most  satisfactory  character.  But  the  presumption  upon  which 
weight  is  given  to  such  evidence,  namely:  that  an  innocent  man 
will  not  imperil  his  safety  or  prejudice  his  interests  by  an  untrue 
statement,  ceases  when  the  confession  appears  to  have  been  made, 
either  in  consequence  of  inducements  of  a  temporal  nature  held 
out  by  one  in  authority,  touching  the  charge  preferred,  or  because 
of  a  threat  or  promise  made  by  or  in  the  presence  of  such  person, 
in  reference  to  such  charge.     Ilopt  v.  Utah,  110  U.  S.  574,  28  L. 


492  LAW    OF    EVIDENCE    IN    CRIMINAL   CASES. 

ed.  202.  This  must  not  be  construed  as  holding  that,  a  con- 
fession made  by  a  defendant  on  the  simple  advice  of  an  officer 
that  he  "had  better  tell-  the  truth"  is  free  and  voluntary  [State  v. 
Mi  >  hms,  41  La.  Ann.  543)  but  confessions  are  always  admissible 
if  no  inducement  was  held  out  or  threat  made,  or  anything  done 
to  induce  the  accused  to  believe  that  it  would  be  better  for  him 
to  confess,  and  worse  if  he  did  not.  State  v.  Moorman,  27  S. 
C.  22. 

§  310.  If  Elicited  by  Fear  or  Menace  should  be  Rejected. — 
The  general  principle  is  well  settled,  that  the  confessions  of  par- 
ties in  civil  suits  or  criminal  prosecutions,  are  to  be  received  in 
evidence.  It  is  equally  clear  that  confessions  made  under  some 
circumstances  are  not  admissible.  Where  they  are  entirely  vol- 
untary, they  are  to  be  received;  but  where  they  are  drawn  out  by 
any  expectation  of  favor  or  by  menaces,  they  are  to  be  rejected. 
In  determining  this  question,  it  is  proper  to  take  into  view  the 
reason  on  which  confessions  so  drawn  out  are  excluded.  It  is  not 
because  of  any  breach  of  good  faith  in  admitting  them,  nor 
because  they  are  extorted  illegally  (though  there  may  be  cases  in 
which  this  would  exclude  them,  as  where  a  magistrate  puts  the 
arc  used  upon  his  oath)  but  the  reason  is,  that  in  the  agitation  of 
mind  in  which  the  party  charged  is  supposed  to  be,  he  is  liable  to 
be  influenced  by  the  hope  of  advantage,  or  fear  of  inquiry,  to 
state  things  which  are  not  true.  Corn.  v.  Knapp,  9  Pick.  496,  20 
Am.  Dec.  491. 

The  reasoning  that  prevailed  in  the  Massachusetts  case  last  cited 
led  the  New  York  court  of  appeals  to  declare  that  an  accused  who 
has  signed  a  confession  that  he  committed  the  crime  of  which  he 
is  charged,  in  concert  with  others,  has  the  right  to  prove,  if  he 
can,  that  the  important  parts  of  the  confession  were  not  entitled 
to  any  credit  with  the  jury,  especially  where  he  was  indicted 
jointly  with  some  of  the  persons  described  in  the  confession  as 
his  confederates.     People  v.  Fox,  121  N.  Y.  449. 

No  reliance  whatever  can  be  placed  upon  admissions  of  guilt 
<  il  >tai  ned  by  means  of  threats  or  promises;  for  the  very  obvious  reason 
that  they  are  not  made  because  they  are  true,  but  because,  whether 
true  or  false,  the  accused  is  led  to  believe  it  is  for  his  interest  to 
make  them.  The  cases  of  State  v.  Phelps,  11  Vt.  116,  34  Am. 
Dec.  672;  State  v.  Walker,  34  Vt.  296;  Hector  v.  State,  2  Mo.  166, 
22  Am.  Dec.  454;  State  v.  Bostick,  4  Harr.  (Del.)  563;    State  v. 


CONFESSIONS,  CONDUCT    AND    DEMEANOR    OF   THE,    ACCUSED.       493 

Guild,  10  K  J".  L.  192,  18  Am.  Dec.  404;  Spears  v.  State,  2  Ohio 
St.  583;  Com.  v.  Taylor,  5  Cush.  605;  Com.  v.  Tvckerman,  10 
Gray,  190;  Smith  v.  State,  10  Ind.  106;  Miller  v.  People,  39  111. 
457;  Cain  v.  State,  18  Tex.  387;  Davis  v.  State,  2  Tex.  App.  588; 
Van  Bun  n  v.  State,  24  Miss.  512;  Jordan  v.  State,  32  Miss.  382; 
People  v.  Barrio,  49  Cal.  342;  State  v.  Fiwyfc,  37  N.  H.  175;  JftZ- 
te>*  v.  State,  40  Ala.  54;  Porter  v.  State,  55  Ala.  95;  -State  v. 
Whitfield,  70  N.  C.  356,  and  State  v.  Hagan,  54  Mo.  192,  may  all 
be  cited  in  support  of  the  views  here  expressed  and  the  list  might 
easily  be  increased  very  considerably.  People  v.  Wolcott,  51  Mich. 
612. 

As  we  have  seen,  if  the  confession  is  not  elicited  by  any  prom- 
ise or  threat  and  is  voluntary  on  the  part  of  the  accused,  it  is 
admissible.  Peoplt  \.  Wentz,  .".7  N.  Y.  309.  It  is  not  sufficient 
to  exclude  a  confession  by  a  prisoner  that  he  was  under  arrest  at 
the  time,  or  that  it  was  made  to  the  officer  in  whose  custody  he 
was,  or  in  answer  to  questions  put  to  him,  or  that  it  was  made 
under  hope  or  promise  or  a  benefit  of  a  collateral  nature.  Joy, 
Confessions,  §  13;  Rex  v.  Lloyd,  6  Car.  &  P.  393;  State  v.  Tatro, 
50  Vt.  483. 

A  distinction  should  be  recognized  in  this  connection,  which 
rejects  evidence  of  a  confession  extorted  during  the  excitement 
and  turmoil  of  riot,  mob  violence,  or  other  forcible  means.  In 
such  cases  the  imminent  danger  of  great  bodily  harm  may  prompt 
a  person  to  solemn  statements  even  under  oath,  the  only  object  of 
which  is  to  avoid  the  peril  and  apprehension  of  the  moment. 
Young  v.  State,  68  Ala.  569;  State  v.  Revells,  34  La.  Ann.  381, 
44  Am.  Rep.  430;  Miller  v.  People,  39  111.  457;  Jordan  v.  Stat, , 
32  Miss.  382. 

The  theory  underlying  the  principle  in  the  text  last  cited,  is  of 
extending  influence  and  in  many  jurisdictions  the  rule  obtains 
that  where  the  confession  is  induced  by  some  promise  of  favor  or 
threat  of  harm  emanating  from  some  person  of  official  character, 
or  believed  by  the  accused  to  sustain  an  official  relation,  the  con- 
fession should  be  excluded.  Spears  v.  State,  2  <  >hio  St.  583;  <  om. 
v.  Tuckerman,  10  Gray,  173;  Peopli  v.  Wolcott,  51  Mich.  612; 
State  v.  Revells,  supra. 

The  foregoing  reasoning  will  exclude  a  confession  of  crime,  by 
one  who  was  told  that  if  he  did  not  confess  to  the  speaker  he 
would  have  to  confess  to  a  justice  of  the  peace.     Johnson  v.  State, 


494  LAW    OF   EVIDENCE    IN    CRIMINAL    CASES. 

76  Ga.  76.  And,  similarly,  a  confession  is  not  admissible  when* 
made  by  a  defendant  who  sought  the  sheriff  to  find  out  if  a  con- 
fession would  not  be  better  for  him,  and  was  encouraged  by  the 
sheriff  to  think  that  it  would  be.  People  v.  Thompson,  84  Cal. 
598. 

AVhen  a  confession  has  been  obtained  through  illegal  influences, 
such  influences  will  be  presumed  to  continue  and  color  all  subse- 
quent confessions,  unless  the  contrary  is  clearly  shown.  Coffee  v. 
State,  25  Fla.  501;  Murray  v.  State,  25  Fla.  528. 

Any,  the  slightest,  menace,  or  threat,  or  any  hope  engendered 
or  encouraged  that  the  prisoner's  case  will  be  lightened,  melio- 
rated, or  more  favorably  dealt  with,  if  he  will  confess — either  of 
these  is  enough  to  exclude  the  confession  thereby  superinduced. 
Any  words  spoken  in  the  hearing  of  the  prisoner,  which  may  in 
their  nature,  generate  such  fear  or  hope,  render  it  not  only  proper 
but  necessary  that  confessions  made  within  a  reasonable  time 
afterwards  shall  be  excluded,  unless  it  is  shown  by  clear  and  full 
proof  that  the  confession  was  voluntarily  made,  after  all  trace  of 
hope  or  fear  had  been  fully  withdrawn  or  explained  away,  and 
the  mind  of  the  prisoner  made  as  free  from  bias  and  intimidation 
as  if  no  attempt  had  ever  been  made  to  obtain  such  confessions. 
Ow<  n  v.  State,  78  Ala.  425. 

"  Public  policy  absolutely  requires  the  rejection  of  confessions 
obtained  by  means  of  inducements  held  out  by  persons  in  au- 
thority. It  may  be  true,  even  in  such  cases,  owing  to  the  variety 
and  character  of  the  circumstances,  that  the  promise  may  not  in 
fact  induce  the  confession.  But  as  it  is  thought  to  succeed  in  a. 
large  majority  of  instances,  it  is  wisely  adopted  as  a  rule  applicable 
to  them  all.  "We  cannot  too  strongly  urge  on  the  district  attorneys 
never  to  offer  evidence  of  confessions,  except  it  has  first  been 
made  to  appear  that  they  were  made  voluntarily."  People  v. 
Barrie,  49  Cal.  345. 

§  311.  Great  Caution  Enjoined  in  Receiving. — To  be  rele- 
vant and  hence  admissible,  it  must  clearly  appear  that  the  confes- 
sion was  entirely  voluntary.  The  reason  for  this  rule  is  very  well 
stated  in  Slate  v.  Melds,  Peck  (Tenn.)  140,  that  "the  evidence 
of  such  confession  is  liable  to  countless  abuses.  They  are  made 
by  persons,  generally,  under  arrest,  in  great  agitation  and  distress, 
when  each  ray  of  hope  is  eagerly  caught  at,  and  frequently  under 
the  delusion,  though  not  expressed,  that  the  merit  of  a  disclosure 


CONFESSIONS,  CONDUCT   AND   DEMEANOR    OF   THE    ACCUSED.       495 

will  be  productive  of  personal  safety.  To  disclose  the  confession 
is  odious  as  a  breach  of  confidence,  which  it  is  at  all  times.  The 
confession  is  made  in  want  of  advisers,  under  circumstances  of 
desertion  by  the  world,  in  chains  and  degradation,  with  spirits 
sunk,  fear  predominant,  hope  fluttering  around,  purposes  and 
views  momentarily  changing,  a  thousand  plans  alternating,  a  soul 
tormented  with  anguish,  and  difficulties  gathering  into  a  multitude 
— how  easy  it  is  for  the  hearer  to  take  one  word  for  another,  or 
to  take  a  word  in  a  sense  not  intended  by  the  speaker,  and,  for 
want  of  an  exact  representation  of  the  tone  of  voice,  emphasis, 
countenance,  eye,  manner,  and  action  of  the  one  who  made  the 
confession,  how  almost  impossible  it  is  to  make  a  third  person 
understand  the  exact  state  of  his  mind  and  meaning.  For  these 
reasons  such  evidence  is  received  with  great  distrust  and  under 
apprehensions  of  the  wrong  it  may  do.  Its  admissibility  is  made 
to  depend  on  it  being  free  of  the  suspicion  that  it  was  obtained 
by  any  threats  or  severity  or  promise  of  favor,  and  of  every  influ- 
ence, even  the  minutest."  Jit  hit  v.  State,  20  Neb.  492,  57  Am, 
Kep.  835. 

As  previously  stated,  before  the  confessions  of  a  party  charged 
with  crime  are  admissible  in  evidence  against  him,  it  must  be 
shown  that  such  confession  was  freely  and  voluntarily  made. 
This  widely  accepted  rule  is  sustained  by  numerous  authorities. 
See  Thompson  v.  Com.  20  Gratt.  724;  Simon  v.  State,  5  Fla.  285; 
State  v.  Carr,  37  Vt.  191;  Dixon  v.  State,  13  Fla.  636;  State  v. 
Walker,  34  Vt.  296;  Metzger  v.  State,  18  Fla.  481;  Com.  v. 
Wltittemore,  11  Gray,  201;  Flanagin  v.  State,  25  Ark.  92;  Com. 
v.  Tuckerman,  10  Gray,  173;  State  v.  Stalcy,  14  Minn.  105;  State 
v.  Squires,  4S  K  H.  364;  Cady  v.  State,  44  Miss.  332;  People  v. 
Phillips,  42  K  Y.  200;  State  v.  Loivhorne,  06  N.  C.  63S;  State 
v.  Howard,  17  K  H.  171;  O'Brien  v.  People,  48  Barb.  274; 
Frain  v.  State,  40  Ga.  529;  Vaughan  v.  Com.  17  Gratt.  576; 
State  v.  Broekman,  46  Mo.  566;  Price  v.  State,  19  Ohio,  423 ; 
Frank  v.  State,  39  Miss.  705;  Mose  v.  State,  36  Ala.  211;  State  v. 
Ostrander,  18  Iowa,  435;  Aaron  v.  State,  37  Ala.  106;  Austine 
v.  People,  51  111.  236;  Joe  v.  State,  38  Ala.  422;  Miller  v.  People, 
39  111.  457;  Love  v.  State,  22  Ark.  336;  People  v.  Jim  Ti,  32 
Cal.  60, 

But  it  is  a  rule  of  law  of  equally  wide  acceptance  that  the  con- 
fessions of  parties  charged  with  crime  should   be  acted  upon  by 


496  LAW    OF    EVIDENCE    IN    CRIMINAL    CASES. 

courts  and  juries  with  great  caution.  Deathridge  v.  State,  1 
Sneed,  75;  People  v.  Johnson,  41  Cal.  452;  Simon  v.  State,  supra; 
Dixon  v.  State,  L3  Fla.636;  Metzger  v.  State,  18  Fla.481;  P^fe 

v.  /,'<///<;/,  3  Park.  Crim.  Kep.  438;  1  Greenl.  Ev.  §  200;  Best, 
Ev.  537.  The  wisdom  of  this  rule  cannot  be  questioned,  for  the 
reason  that,  notwithstanding  the  confessions  of  persons  accused  of 
crime  have  been  held  to  be  evidence  of  the  very  highest  character, 
upon  the  theory  that  no  man  would  acknowledge  that  he  had 
committed  a  grave  crime  unless  he  was  actually  guilty;  but 
experience  teaches  that  this  theory  is  a  fallacy,  for  it  is  a  fact  that 
numbers  of  persons  have  confessed  that  they  were  guilty  of  the 
most  heinous  crimes,  for  which  they  suffered  the  most  horrible 
punishments,  and  yet  they  were  innocent. 

In  comparatively  recent  times  men  and  women  confessed  that 
they  were  guilty  of  witchcraft — and  given  to  experiments  in 
materialization  and  hypnotics — and  at  this  day,  men,  through 
fear  of  personal  punishment,  or  through  hope  or  averting  =uch 
punishment,  confess  that  they  are  guilty  of  crime,  without  the 
slightest  foundation  in  truth  for  such  confession,  and  for  these 
reasons,  we  say  that  the  theory  that  men  will  not  confess  to  the 
commission  of  crimes  of  which  they  are  innocent  is  a  fallacy. 

There  is  another  rule  of  law,  and  it  has  its  foundation  in  justice, 
and  that  is,  that  when  a  confession  has,  in  he  first  place,  been 
made  under  illegal  influences,  such  influences  will  be  presumed  to 
continue  and  color  all  subsequent  confessions,  unless  the  contrary 
is  clearly  shown.  Simon  v.  State,  5  Fla.  285;  Love  v.  State,  22 
Ark.  336;  Wharf.  Crim.  Ev.  077;  2  East,  P.  C.  65S;  Best,  Ev. 
537;  Koscoe,  Crim.  Ev.  40;  Heard,  Crim.  L.  189 ;  Peter  v. 
State,  4  Smedes  &  M.  37;  Joe  v.  State,  3S  Ala,  422;  Dinah 
v.  State,  39  Ala.  359;  Ward  v.  State,  50  Ala.  120;  Thomp- 
son v.  Com.  20  Qratt.  724;  Redd  v.  State,  09  Ala.  255;  Barnes 
v.  State,  36  Tex.  356;  People  v.  Jim  Ti,  32  Cal.  GO;  Deathridge 
\.  State,  1  Sneed,  75;  People  v.  Johnson,  41  Cal.  452;  State  v. 
Howard,  17  N.  H.  171;  Austine  v.  People,  51  111.  230;  State  v. 
Jones,  54  Mo.  478;  State  v.  Brcchman,  40  Mo.  500;  2  Russell, 
Crime.-,  832;  2  Stark.  Ev.  49. 

§  312.  Province  of  Court  and  Jury  with  Reference  to. — If, 
by  comparison,  the  confessions  are  to  be  in  harmony  and  consist- 
ency with  all  the  other  evidence,  they  may  be  received  as  true, 
though  believed    by  the  jury  to  be  involuntary.     But  the  deter- 


CONFESSIONS,  CONDUCT    AND    DEMEANOR   OF    THE    ACCUSED.       497 

initiation  of  their  incredibility  is  exclusively  their  province,  and 
the  court  will  have  invaded  the  province  of  the  jury,  if  it  in- 
structed them  to  reject  the  confessions  as  wanting  in  credibility, 
if  they  were  not  made  freely  and  voluntarily.  Young  v.  State, 
68  Ala.  569;  Redd  v.  State,  69  Ala.  255. 

§  313.  Confessions  not  Conclusive.— "The  fallacy  of  attribut- 
ing a  conclusive  effect  to  confessorial  evidence  was  detected  by 
the  intelligence  of  later  times,  and  has  been  abundantly  confirmed 
by  experience.  Why  must  a  confession  of  guilt  necessarily  be 
true?  Because,  it  is  argued,  a  person  can  have  no  object  in  mak- 
ing a  false  confessorial  statement,  the  effect  of  which  will  be  to 
interfere  with  his  interest  by  subjecting  him  to  disgrace  and  pun- 
ishment; and  consequently  the  first  law  of  nature — self-preserva- 
tion— may  be  trusted  as  a  sufficient  guaranty  for  the  truth  of  any 
such  statement.  This  reasoning  is,  however,  more  plausible  than 
sound.  Conceding  that  every  man  will  act  as  he  deems  best  for 
his  own  interest,  still  (besides  the  possibility  of  his  misconceiving 
facts  or  law)  he  may  not  only  be  most  completely  mistaken  as  to 
what  constitutes  his  true  interest,  but  it  is  an  obvious  corollary 
from  the  proposition  itself,  that  when  the  human  mind  is  solicited 
by  conflicting  interests  the  weaker  will  give  way  to  the  stronger; 
and  consequently,  that  a  false  confessorial  statement  may  be  ex- 
pected, when  the  party  set-  a  motive  sufficient,  in  his  judgment, 
to  outweigh  the  inconveniences  which  will  accrue  to  him  for  mak- 
ing it.  Now,  while  the  punishment  denounced  by  law  against 
offenses  is  visible  to  all  mankind,  not  only  are  the  motives  which 
induce  a  person  to  avow  delinquency  confined  to  his  own  breast, 
but  those  who  hear  the  confessorial  statement  often  know  little  or 
nothing  of  the  confessionalist,  far  less  of  the  innumerable  links 
by  which  he  may  be  bound  to  others  who  do  not  appear  on  the 
judicial  stage.  The  force  of  these  considerations  will  be  better 
appreciated  when  we  come  to  examine  separately  the  principal 
motives  to  false  confessions;  but  first,  as  connected  with  the  whole 
subject,  must  be  noted  a  marked  distinction  between  our  judica- 
ture and  that  of  most  foreign  nations."     Best,  Ev.  §  554. 

§  314.  Credibility  of  the  Witnesses  Proving  may  be  Ex- 
amined.— The  credibility  of  the  witnesses,  who  may  prove  con- 
fessions, and  of  the  confessions  themselves,  arc  legitimate  subjects 
of  inquiry,  and  may  be  impeached  in  any  authorized  mode. 
32 


498  LAW  OF  EVIDENCE  IN  CKIMINAL  CASES. 

Though  the  defendant  may  have  confessed  the  crime,  he  may 
show  that  the  offense  with  which  lie  is  charged  was  not  in  fact 
committed,  or  that  he  was  not  the  guilty  agent.  These  are  the 
immediate  issues  to  be  tried,  and  any  evidence  is  pertinent  which 
properly  tends  to  prove  or  disprove  them,  and  to  elucidate  the 
main  inquiry.  Any  investigation  of  the  truth  or  falsity  of  such 
admissions  and  declarations  would  raise  collateral  inquiries,  mul- 
tiply the  issues,  and  by  diverting  the  minds  of  the  jury  from  the 
main  inquiry,  confuse  their  deliberations.  Lang  v.  State,  34. 
Ala.  1. 

§  315.  Confessions  under  Intoxication.  —  Intoxication  of 
the  accused  at  the  time  when  he  may  have  made  a  confession 
would  have  affected  the  weight  of  the  confession  as  evidence 
against  himself,  but  would  not  go  to  exclude  the  confession  from 
being  put  in  evidence.  Com,  v.  Howe,  9  Gray,  110.  That  de- 
gree of  intoxication  which  leaves  one  capable  of  making  a  narra- 
tion of  past  events,  or  stating  his  own  participation  in  a  crime,  is 
not  sufficient  to  exclude  the  inculpatory  statement  from  the  con- 
sideration of  the  jury.  State  v.  Grear,  28  Minn.  426,  41  Am. 
Rep.  296;  Joy,  Confessions,  42;  Rex  v.  Derrington,  2  Car.  &  P. 
448;  R<  x  v.  Thomas,  7  Car.  &  P.  345;  King  v.  State,  40  Ala.  314; 
Gates  v.  People,  14  111.  433;  People  v.  Barker,  60  Mich.  277: 
State  v.  Staley,  14  Minn.  105;  State  v.  Jones,  54  Mo.  478;  State  v. 
Phelps,  74  Mo.  128;  State  v.  Fredericks,  >s5  Mo.  145;  State  v. 
Rush,  95  Mo.  L99;  State  v.  Mitchell,  61  N.  C.  447;  Heldt  v.  State, 
20  Neb.  492,  57  Am.  Peep.  835;  Com,  v.  Hanlon,  3  Brewst.  401.' 

The  infirmities  that  attend  a  confession  made  by  one  under  the 
influence  of  liquor  equally  apply  to  those  made  by  one  in  sleep. 
In  b<  »th  instances,  the  absence  of  knowledge  as  to  the  scope,  nature 
and  effect  of  the  statement  made,  is  a  ground  for  exclusion.  See 
People  v.  Robinson,  19  Cal.  40. 

Where,  however,  the  confession  is  obtained  as  the  result  of  an 
artful  intrigue,  or  disingenuous  practices  and  even  gross  false- 
hood, the  confession  is  none  the  less  admissible,  if  it  sufficiently 
appears  that,  while  induced  by  these  reprehensible  methods,  it 
was  >till  voluntarily  elicited,  and  did  not  originate  in  threats  or 
pr<  >mises  operating  upon  the  mind  of  the  accused.  King  v.  State, 
Gates  v.  People,  State  v.  Phelps,  State  v.  Mitchell,  People  v. 
Barker,  State  v.  Jones,  State  v.  Rush,  State  v.  Fredericks,  Com. 
v.  Hanlon,  State  v.  Staley  and  Heldt  v.  State,  supra. 


CONFESSIONS,  CONDUCT    AND    DEMEANOR   OF    THE    ACCUSED.       499 

§  316.  Confession  Obtained  by  Improper  Influence. — 
Although  an  original  confession  may  have  been  obtained  by  im- 
proper means,  subsequent  confessions  of  the  same,  or  of  like  facts, 
may  be  admitted,  if  the  court  believe,  from  the  length  of  time 
intervening,  from  proper  warning,  or  from  other  circumstances, 
that  the  delusive  hopes  or  fears,  under  the  influence  of  which  the 
original  confession  was  obtained,  were  entirely  dispelled.  A 
prisoner  may  be  convicted  on  his  own  confession,  when  proved  by 
legal  testimony,  although  it  is  uncorroborated  by  any  other  evi- 
dence, provided  the  corpus  delicti  be  proved.  Corroborating 
circumstances,  used  in  reference  to  a  confession,  are  such  as  serve 
to  strengthen  it,  to  render  it  more  probable,  such  in  short,  as  may 
serve  to  impress  a  jury  with  a  belief  of  its  truth.  State  v.  Guild, 
10  N.  J.  L.  192,  18  Am.  Dec.  404. 

The  rule  may  be  expressed  as  follows:  When  one  confession 
is  denied  admission  because  improperly  obtained,  a  subsequent 
confession  is  equally  incompetent  as  evidence,  unless  it  should 
satisfactorily  appear  that  such  an  interval  of  time  had  elapsed  be- 
tween the  two  confessions  as  to  warrant  the  presumption,  that  the 
infirmities  connected  with  the  first  confession  had  been  effectually 
removed.  In  other  words,  if  the  inducements  that  prompted  the 
first  confession  have  disappeared,  and  there  is  reason  to  believe 
that  they  in  no  wise  prompted  the  subsequent  confession,  it  should 
be  regarded  as  relevant  testimony.  Porter  v.  State,  55  Ala.  95: 
Bttr//  v.  United  States,  2  Colo.  ISO;  Bonner  v.  State,  55  Ala. 
242;  People  v.  Johnson,  41  Cal.  452:  McAdory  v.  State,  62  Ala. 
154:  Love  v.  State,  22  Ark.  336;  Owen  v.  State,  78  Ala.  425;  Si- 
mon v.  State,  5  Fla.  285;  State  v.  Guild,  10  K  J.  L.  192,  18  Am. 
Dec.  404;  State  v.  Chambers,  39  Iowa,  179;  People  v.  Barker,  60 
Mich.  277;  People  v.  Robertson,  1  Wheel.  Crim.  Cas.  66;  Brister 
v.  State,  26  Ala.  129;  Com.  v.  Knapp,  9  Pick.  49*;,  20  Am.  Dec. 
491;  State  v.  Jones,  54  Mo.  47b;  People  v.  Jim  7V,  32  Cal.  60; 
Com.  v.  Taylor,  5  Cush.  605;  Statt  v.  Super,  16  Me.  293;  Com.  v. 
CulUn,  111  Mass.  435;  StaU  v.  Lowhorne,  <66  N.  C.  638:  State  v. 
Frazier,  6  Baxt.  539;  State  v.  Wintzingerode,  9  Or.  153;  Beg- 
garly v.  State,  8  Baxt.  520. 

§317.  New  York  Rule  Relative  to. — "A  confession  of  a 
defendant,  whether  in  the  course  of  judicial  proceedings  or  to  a 
private  person,  can  be  given  in  evidence  against  him,  unless  made 
under  the  influence  of  fear  produced  by  threats,  or  unless  made 


500  LAW    OI<'    EVIDENCE    IN    CRIMINAL    CASES. 

upon  a  stipulation  of  the  district  attorney,  that  he  shall  be  prose- 
cuted therefor."     N.  Y.  Code  Crim.  Proc.  §  395. 

All  a  party  has  said,  which  is  relevant  to  the  question  involved 
in  the  trial,  is  admissible  in  evidence  against  him.  The  excep- 
tions to  this  rule  are  where  the  confession  has  been  drawn  from 
the  prisoner  by  means  of  a  threat  or  a  promise,  or  where  it  is  not 
voluntary,  because  obtained  compulsorily  or  by  improper  influ- 
ence.    Hendrickson  v.  People,  10  1ST.  Y.  21,  61  Am.  Dec.  721. 

No  rule  of  evidence  has  probably  been  more  sharply  criticized 
upon  ethical  grounds  than  this,  not  so  much  as  to  the  admissibility 
of  confessions  against  persons  accused  of  crime,  but  rather  as 
regards  the  methods  permitted  for  obtaining  the  information. 

It  must  be  admitted  that  in  the  use  of  this  rule  the  moralist 
would  find  many  instances  where  the  end  seems  made  to  justify 
the  means. 

"Improper  influence"  was  never  eagerly  sought  under  the  old 
rule,  and  has  no  place  among  the  limitations  of  the  code.  Ac- 
cordingly it  happens  that  officers  of  the  law,  skilled  in  eliciting 
information,  and  zealous  (the  critics  say)  to  secure  conviction  in 
any  event,  are  permitted  to  use  every  form  of  art  and  artifice 
short  of  the  prohibition  of  the  statute.  Thus  an  officer  may  pur- 
posely ply  the  suspected  person  with  liquor.  Jefferds  v.  People, 
5  Park.  Crim.  Rep.  522.  lie  may  resort  to  all  manner  of  decep- 
tion {Jefferds  v.  People,  supra;  People  v.  Wentz,  37  X.  Y.  303) 
even  to  the  length  adopted  in  the  recent  Brooks  murder  trial  at 
St.  Louis,  where  the  detective  obtained  indictment  and  imprison- 
ment of  himself  for  a  feigned  crime,  in  order  to  become  a  fellow- 
prisoner  of  the  accused,  for  the  purpose  of  winning  his  confidence. 
State  v.  Brooks,  92  Mo.  512;  Morrill,  Competency  &  Privilege  of 
Witnesses,  chap.  8,  p.  95. 

All  confessions  material  to  the  issue,  voluntarily  made  by  a 
party,  whether  oral  or  written,  and  however  authenticated,  are 
admissible  as  evidence  against  him  on  a  trial  for  a  criminal  offense. 
People  v.   Wentz,  supra. 

%  318.  Demeanor  of  the  Accused  when  under  Arrest— 
Effect  of  Silence. — The  fact  that  a  person  charged  with  a  crime 
is  under  arrest,  does  not  render  what  he  says  or  does  inadmissible. 
People  v.  11  rentz,  :57  X.  Y.  303;  People  v.  Montgomery,  13  Abb. 
Pr.  N.  S.  209;  People  v.  Long,  43  Cal.  Ill;  Com.  v.  Cuffee,  108 
Mass.  285;  Com.  v.  Crooner,  108  Mass.  461.  What  a  third  person 
says  in  the  presence  of  a  person   charged,  is  admissible  against 


CONFESSIONS,  CONDUCT    AND    DEMEANOR    OF   THE    ACCUSED.       501 

him  if  he  remains  silent.  His  silence  must  be  taken  as  an  acqui- 
escence in  its  truth.  McKee  v.  People,  36  N.  Y.  116;  Hochrieter 
v.  People,  2  Abb.  App.  Dec.  363;  Cases  in  K  Y.  Ct.  Apps.,  Ct. 
Apps.  Lib.  vol.  144,  case  1,  pp.  10,  11;  Donelly  v.  State,  26  N. 
J.  L.  464,  601;  Rex  v.  BarUett,  7  Car.  &  P.  832;  Com.  v.  Kenney, 
VI  Met.  235,  46  Am.  Dec.  t',7i>:  Sp<  ncer  v.  State,  20  Ala.  24;  Rex 
v.  Smithies,  5  Car.  &  P.  332;  People  v.  McCrea,  32  Cal.  98; 
Li  wis  v.  Blair,  3  Irvine.  16;  Fenno  v.  Weston,  31  Vt.  345; Mat- 
tocks v.  Lyman,  16  Vt.  113;  Liles  v.  State,  30  Ala.  24,  68  Am. 
Dec.  108;  Johnson  v.  State,  17  Ala.  624;  Martin  v.  State,  2S  Ala. 
81;  Fralich  v.  People,  *'»•">  Barb.  48;  Jewett  v.  Banning,  21  X.  Y. 
27;  Phil.  A:  Am.  Ev.  §  696;  Joy,  Confessions.  77;  Best,  Presump- 
tions, §  241;  Burrill,  Circ.  Ev.  482,  483;  McDonald,  Crim.  L.  of 
Scotland,  543;  2  Russell,  Crimes,  866;  1  Phil.  Ev.  400;  1  Taylor, 
Ev.  (0th  ed.)  §  739.  Statements  made  by  the  accused  as  a  wit- 
ness in  exculpation  of  another  charged  with  the  same  offense,  may 
be  proved.  MacDonald,  Crim.  L.  of  Scotland,  543;  Edmondston's 
Case,  1  Scotch  L.  R.  107;  2  Russell,  Crimes,  865,  866.  When 
there  is  a  question  of  identity  it  is  proper  to  show  that  a  witness, 
unacquainted  with  a  party,  identified  him  shortly  after  the  occur- 
rence. Reg.  v.  Blackburn,  6  Cox,  C  C.  333;  Rex  v.  Deering, 
5  Car.  &  P.  165.  The  voluntary  declarations  and  admissions  of 
one  on  trial  for  a  criminal  offense,  that  is.  those  not  made  under 
duress,  or  induced  by  menaces  <>r  promises,  are  always  evidence 
against  the  party  making  them,  and  are  more  or  less  cogent  as 
evidence  of  guilt,  depending  upon  the  circumstances  under  which 
they  are  made.  The  same  principle  gives  great  effect  to  the 
action  of  the  accused  as  evidence  tending  to  prove  or  disprove  his 
guilt.  Teachout  v.  People,  41  N.  Y.  7;  People  v.  Wentz,  37  K 
Y.  303;  Com.  v.  Cuffee,  L08  Mass.  285;  Com.  v.  Crocker,  108 
Mass.  464.  When  tbe  conduct  of  the  accused,  either  before  or 
after  being  charged  with  the  offense,  is  given  in  evidence,  it  is  for 
the  jury  to  draw  the  proper  inferences  and  determine  whether  it 
is  consistent  with  innocence,  or  is  indicative  of  a  guilty  mind, 
proving  more  or  less  conclusively  the  commissions  by  him  of  the 
particular  offense  charged.  Roscoe,  Crim.  Ev.  18;  People  v. 
Rathbun,  21  Wend.  509. 

Where  an  individual  is  charged  with  an  offense, or  declarations 
are  made  in  his  presence  and  hearing,  lunching  or  affecting  his 
guilt  or  innocence  of  an  alleged  crime,  and  he  remains  silent  when 


502  LAW    OB'    EVIDENCE    IN    CRIMINAL    CASES. 

it  would  be  proper  for  him  to  speak,  it  is  the  province  of  a  jury 
to  interpret  such  silence,  and  determine  whether  his  silence  was, 
under  the  circumstances,  excused  or  explained.  At  most,  silence 
under  such  circumstances  is  but  an  implied  acquiescence  in  the 
truth  of  the  statements  made  by  others.  Still,  it  is  a  familiar  ele- 
mentary principle,  that  silence,  when  the  accused  is  under  no 
restraint  and  at  full  liberty  to  speak,  may  sometimes  be  regarded 
as  a  tacit  admission.  At  all  events  all  such  matters  are  proper 
for  the  consideration  of  the  jury.  Pierce  v.  Goldsberry,  35  Ind. 
317;  Puett  v.  Beard,  86  Ind.  104. 

The  case  of  Com.  v.  Kenney,  12  Met.  235,  46  Am.  Dec.  672, 
does  not  conflict  with  the  general  principle,  but  suggests  impor- 
tant limitations  in  its  application  and  in  the  extent  of  its  operation. 
If  the  statement  is  not  heard  by  the  accused,  or  if  being  heard,  he 
deny  it,  or  if  circumstances  existed  at  the  moment  which  pre- 
vented a  reply  or  rendered  a  reply  inexpedient  or  improper,  the 
evidence  certainly  is  of  no  value.  Donnelly  v.  State,  26  N.  J.  L. 
464. 

A  confession  may  be  inferred  from  the  conduct  and  demeanor 
of  a  prisoner  when  a  statement  is  made  in  his  presence  affecting 
himself,  unless  such  statement  is  made  under  circumstances  which 
prevented  a  reply.  Bex  v.  Bartlett,  7  Car.  &  P.  832;  Joy,  Con- 
fessions, 77;  1  Greenl.  Ev.  §  215;  1  Phil.  &  Am.  Ev.  422. 

In  the  most  recent  treatise  on  criminal  law,  the  rule  is  thus 
stated:  "Where  a  man,  at  full  liberty  to  speak,  and  not  in  the 
course  of  a  judicial  inquiry,  is  charged  with  a  crime,  and  remains 
silent,  that  is,  makes  no  denial  of  the  accusation  by  word  or  ges- 
ture, his  silence  is  a  circumstance  which  may  be  left  to  the  jury." 
Whart.  Am.  Crim.  L.  §  696. 

In  civil  actions  the  same  principle  prevails.  What  is  asserted 
in  the  presence  of  a  party  to  a  suit,  and  not  contradicted  by  him, 
is  received  on  the  ground  that  his  silence  is  an  admission  of  the 
truth  of  what  was  said.  Batturs  v.  Sellers,  5  Harr.  &  J.  119;  2 
Phil.  Ev.  (Cowen  &  Hill's  Notes)  192,  note,  191. 

The  degree  of  credit  due  to  such  tacit  admissions  is  to  be  esti- 
mated by  the  jury  under  the  circumstances  of  each  case.  1 
<  J-reenl.  Ev.  §  215. 

It  is  admitted  that  such  evidence  should  always  be  received 
with  great  caution.  In  some  eases  it  may  be  equivocal  and  of  the 
lightest  possible  value,  in  others  it  may  be  entitled  to  much  weight. 


CONFESSIONS,  CONDUCT    AND    DEMEANOR    OF   THE    ACCUSED.       503 

Its  value,  of  necessity,  must  be  estimated  by  the  jury.  If  it  be 
doubtful  whether  the  jury  heard  or  understood  the  proposition  to 
which  his  silent  assent  is  claimed,  the  jury  may  determine  it. 
State  v.  Perkins,  10  N.  C.  377;  Berry  V.  State,  10  Ga.  511;  2 
Phil.  Ev.  (Cowen  &  Hill's  notes),  194,  note  191. 

In  Greenfield  v.  People,  85  N.  Y.  85,  39  Am.  Rep.  636,  Judge 
Miller  says:  "The  acts  and  conduct  of  a  party  at  or  about  the 
time  when  he  is  charged  to  have  committed  a  crime  are  always 
received  as  evidence  of  a  guilty  mind,  and  while,  in  weighing  such 
evidence,  ordinary  caution  is  required,  such  inferences  are  to  be 
drawn  from  them  as  experience  indicates  is  warranted.  .  .  . 
And  the  demeanor  of  the  prisoner  at  the  time  of  his  arrest,  or 
soon  after  the  commission  of  the  crime,  or  upon  being  charged 
with  the  offense,  is  a  proper  subject  of  consideration  in  determin- 
ing the  question  of  guilt.  Such  indications,  however,  are  by  no 
means  conclusive,  and  must  depend  greatly  upon  the  mental  char- 
acteristics of  the  individual." 

The  conduct  of  a  person  charged  with  crime,  immediately  after 
the  commission,  is  always  the  proper  subject  of  inquiry.  If  he 
attempts  to  run  away,  or  hide  and  evade  the  officer,  it  is  a  circum- 
stance proper  to  go  to  the  jury. 

As  has  been  said,  the  conduct  and  demeanor  of  the  prisoner  at 
the  time  of  his  arrest,  or  soon  after  the  commission  of  the  crime, 
may  go  to  the  jury  as  evidence  of  a  guilty  mind,  and,  so  far  as  the 
testimony  was  confined  to  a  reasonable  time  after  the  discovery  of 
the  crime  and  his  arrest,  it  was  certainly  admissible.  Greenfield 
v.  People,  85  N.  Y.  75,  39  Am.  Rep.  636;  State  v.  Baldwin,  36 
Kan.  1. 

It  is  an  important  circumstance  always — the  conduct  of  the  per- 
son charged  with  the  crime  when  they  first  hear  of  the  offense 
committed;  and  also  their  conduct  when  the  crime  is  first  charged 
home  upon  them.  Kow,  among  the  ordinary  evidences  of  guilt, 
is  also  the  conduct  of  the  party  after  the  deed  is  committed. 
Flight  and  concealment  are  considered  very  strong  evidences  of 
guilt  always. 

When  it  is  in  the  power  of  the  person  to  explain,  his  failure  to 
do  so  is  strong  presumptive  evidence  against  him.  G<>r<l<>/>  v. 
People,  33  N.  V.  501. 

In  closing  my  observations  upon  this  subject  it  may  be  well  to 
say  that  all  confessions  are  prima  facie  involuntary  and  inadmissi- 


504  LAW    OF    EVIDENCE    IN    CRIMINAL    CASES. 

ble.  People  v.  Rodriguez,  10  Cal.  50;  People  v.  Ah  How,  34 
Cal.  218;  People  v.  Gelabert,  39  Cal.  663;  Biscoe  v.  State,  67  Md. 
6.  Nor  are  confessions  presumed  to  have  been  voluntarily  made 
when  the  party  making  it  is  restrained  of  his  liberty,  or  is  in 
immediate  apprehension  of  irreat  bodily  harm.  Hudson  v.  Com, 
2  Duv.  531;  X<  <'-),, an  v.  State,  49  Ala.  9;  Pick  v.  State,  30  Miss. 
593;  Miller  v.  People,  39  111.  457:  State  v.  Berry,  21  Me.  171; 
Stephen  v.  State,  11  Ga.  225;  Simon  v.  State,  5  Fla.  285;  Com.  v. 
Chabbock,  1  Mass.  144;  UV^Ay  v.  tfteite,  11  Ga.  123;  People  v. 
Smith,  15  Cal.  408;  <Stej&  v.  Ostrander,  18  Iowa,  435;  Com.  v. 
Curtis,  97  Mass.  574;  Pete/*  v.  State,  4  Smedes  &  M.  31;  #teite  v. 
Peter,  14  La.  Ann.  527;   JJ7A//  v.  £te?te,  3  Coldw.  362. 

Contradictory  statements  by  the  accused  are  competent  evidence 
against  him.     McMeen  v.  6re»/i.  5  Cent.  Rep.  887,  114  Pa.  300. 


CHAPTER  XLI. 

EVIDENCE  AFFORDED   BY  ACCOMPLICES. 

§  319.  Who  is  mi  Accomplice. 

320.  Immunities  of. 

321.  Testimony  of  Accomplice  Competent  to  Convict 

322.  Caution  against  the  Infirmities  of  this  Evidence. 

323.  Corroborative  Testimony  Should  be  Required. 

324.  Extent  of  Corroboration  is  for  the  Jury. 

325.  Cross-examination  of  an  Accomplice. 

320.  Rights  of  an  Accomplice  Giving  Evidence  for  the  State. 

327.  Rule  as  to  Co-defendants  who  have  Pleaded  Guilty. 

328.  Credibility  of  Accomplice  is  for  the  Jam/. 

329.  Evidence  of  Detectives,  Decoys  and  Spies. 

§  319.  Who  is  jin  Accomplice.— An  accomplice  is  a  person 
involved  either  directly  or  indirectly  in  the  commission  of  the 
crime.  To  render  him  such,  lie  must  in  some  manner,  aid,  or 
assist,  or  participate  in  the  criminal  act,  and  by  that  connection 
he  becomes  equally  involved  in  guilt  with  the  other  party  by  rea- 
son of  the  criminal  transaction.     People  v.  Smith,  28  Hun,  020. 

§  320.  Immunities  of. — Accomplices  in  guilt,  not  previously 
convicted  of  an  infamous  crime,  when  separately  tried  are  com- 
petent witnesses  for  or  against  each  other;  and  the  universal  usage 
is  that  such  a  party,  if  called  and  examined  by  the  public  prose- 
cutor on  the  trial  of  his  associates  in  guilt,  will  not  be  prosecuted 
for  the  same  offense,  provided  it  appears  that  he  acted  in  good 
faith  and  that  he  testified  fully  and  fairly. 

Where  the  case  is  not  within  the  statute,  the  general  rule  is 
that  if  an  accomplice  discloses  fully  and  fairly  the  guilt  of  him- 
self and  his  associates,  he  will  not  be  prosecuted  for  the  offense 
disclosed;  but  it  is  equally  clear  that  he  cannot  by  law  plead  such 
facts  in  bar  of  any  indictment  against  him,nor  avail  himself  of  it, 
upon  his  trial,  for  it  is  merely  an  equitable  title  to  the  mercy  of 
the  executive,  subject  to  the  conditions  before  stated,  and  can 
only  come  before  the  court  by  way  of  application  to  put  off  the 
trial  in  order  to  give  the  prisoner  time  to  apply  to  the  executive 

5<  15 


-506  LAW    OF    EVIDENCE    IN    CRIMINAL    CASES. 

for  that  purpose.  Rvx  v.  Rudd,  1  Cowp.  332;  United  States  v. 
Ford,  99  U.  S.  594,  25  L.  ed.  399. 

§  321.  Testimony  of  Accomplice  Competent  to  Convict. — 
In  People  v.  Costello,  1  Denio,  83,  Mr.  Justice  Beardsley  said  : 
"Although  it  lias  often  been  said  by  judges  and  elementary  writers 
that  no  person  should  be  convicted  on  the  testimony  of  an  accom- 
plice unless  corroborated  by  other  evidence,  still,  there  is  no  such 
inflexible  rule  of  law.  It  is  a  question  for  the  jury,  who  are  to 
pass  upon  the  credibility  of  an  accomplice,  as  they  must  upon  that 
of  every  other  witness.  His  statements  are  to  be  received  with 
great  caution,  and  the  court  should  always  so  advise;  but,  after 
all,  if  this  testimony  carries  conviction  to  the  minds  of  the  jury, 
and  they  are  fully  convinced  of  its  truth,  they  should  give  the 
same  effect  to  such  testimony  as  should  be  allowed  to  that  of  an 
unimpeached  witness,  who  is  in  no  respect  implicated  in  the 
offense.  Such  testimony  will  authorize  a  conviction  in  any  case. 
The  court  certainly  should  advise  great  caution  on  the  part  of  the 
jury  where  the  testimony  depends  upon  the  uncorroborated  evi- 
dence  of  an  accomplice;  but  they  are  not  to  be  instructed,  as 
matter  of  law,  that  the  prisoner  in  such  case  must  be  acquitted. 
Lord  Ellenborough  thus  expressed  his  views  upon  this  question : 
•  No  one,'  said  he,  'can  seriously  doubt  that  a  conviction  is  legal, 
though  it  proceed  upon  the  evidence  of  an  accomplice  alone. 
Judges,  in  their  discretion,  will  advise  a  jury  not  to  believe  an 
accomplice  unless  he  is  confirmed,  or  only  in  so  far  as  he  is  con- 
tinued; but  if  he  is  believed,  his  testimony  is,  unquestionably, 
sufficient  to  establish  the  facts  to  which  he  deposes.  It  is  allowed 
that  he  is  a  competent  witness,  and  the  consequence  is  inevitable 
that  if  credit  is  given  to  his  evidence,  it  requires  no  confirmation 
from  another  witness.' "  Rex  v.  Jones,  2  Campb.  132.  See  Rex 
v.  Atwood,  1  Leach,  C.  C.  464;  People  v.  Davis,  21  Wend.  309; 
Raskins  v.  People,  IB  K  Y.  344;  2  Colby,  Crim.  L.  214. 

In  criminal  trials,  where  the  testimony  of  accomplices  has  been 
resorted  to  ti>  procure  conviction,  it  has  been  customary  for  judges 
presiding  at  the  trial  to  instruct  juries  that  it  was  ordinarily  un- 
safe to  convict  upon  the  unsupported  and  uncorroborated  evidence 
of  the  accomplice.  Such  instructions,  however, have  been  merely 
advisory.     Haskins  v.  People,  supra. 

§  322.  Caution  against  the  Infirmities  of  this  Evidence. — 
As  a  matter  of  theory,  one  charged  with  crime  may  be  convicted 


EVIDENCE    At'FOKDED    HY    ACCOMPLICES.  507 

upon  the  evidence  of  an  accomplice  alone.  As  a  matter  of  prac- 
tice, courts  caution  juries  against  reliance  upon  the  testimony  of 
accomplices,  unless  corroborated  by  independent  evidence.  Rob- 
erts v.  People,  11  Colo.  213;  Whart.  Crim.  Ev.  §441. 

"An  accomplice  is  an  admissible  witness;  but,  as  he  comes  be- 
fore the  court  under  suspicious  circumstances,  his  testimony  ought 
to  be  received  with  great  caution.  As  a  general  rule,  it  will  be 
unsafe  to  convict  upon  the  testimony  of  an  accomplice  alone,  un- 
corroborated by  other  testimony.  It  ought  to  be  corroborated  in 
material  facts  connecting  the  prisoners,  and  each  of  them  with 
the  crime;  but  the  degree  of  credit  to  be  given  to  the  testimony 
of  an  accomplice,  and  the  amount  of  corroboration  necessary  to 
render  it  satisfactory,  are  matters  to  be  considered  and  determined 
by  the  jury."     State  v.  Maney,  51  Conn.  178. 

The  rule  of  law  is,  that  a  jury  may  convict  on  the  evidence  of 
an  accomplice  alone,  if  they  believe  it;  but  it  is  usual  for  the 
courts  to  say  to  the  jury  that  they  should  not  do  it,  and  that  they 
should  have  corroboration  of  his  testimony  before  they  would 
•convict.     Carroll  v.  Com..  84  Pa.  107. 

In  People  v.  Noelhe,  29  Hun,461;  1  K  Y.  Crim.  Rep.  252,  it 
was  held  that  one  purchasing  a  Lottery  ticket  for  the  purpose  of 
showing  that  the  vendor  was  engaged  in  a  violation  of  the  statute 
was  not  an  accomplice  with  the  person  from  whom  the  ticket  was 
purchased.  See  also  People  v.  Noelke,  '.'1  N.  Y.  137;  1  X.  Y- 
Crim.  Rep.  195,  16  Am.  Rep.  128,  and  Com.  v.  Willard,  22 
Pick.  476. 

In  the  case  of  People  v.  Smith,  28  Hun.  626,  1  N.  Y.  Crim. 
Rep.  72,  the  defendant  was  convicted  of  a  violation  of  the  excise 
law  in  selling  beer  in  quantities  of  less  than  five  gallons  without 
■a  license,  and  all  the  evidence  under  which  she  was  convicted  was 
given  by  the  person  to  whom  the  sale  was  made.  It  was  objected 
that,  under  section  397  of  the  Cede  of  Criminal  Procedure,  pro- 
hibiting a  conviction  upon  the  testimony  of  an  accomplice,  unless 
he  be  corroborated  by  such  other  evidence  as  tends  to  connect 
the  defendant  with  the  commission  of  the  crime,  the  prisoner 
could  not  be  convicted  upon  the  uncorroborated  testimony  of  the 
witness.  This  objection  was  held  to  be  untenable  by  the  general 
term  of  this  department,  it  being  determined  that  as  the  excise 
law  madeonlythe  person  selling, and  not  the  purchaser, guilty  of 
a  criminal  act,  the   purchaser   was  not  an  accomplice  within  the 


5U8  LAW    OF    EVIDENCE    IN    CRIMINAL   CASES. 

meaning  of  said  section  of  the  code.  But  the  language  of  Daniels, 
J.,  in  the  case  of  People  v.  Sm  ith,  disposes  of  this  objection.  The 
learned  judge  says,  "The  purchaser  has  been  subjected  to  no 
criminal  accountability  whatsoever,  and  by  the  mere  purchase  he 
could  not  be  a  participant  in  the  offense.  That  was  performed 
wholly  and  exclusively  by  the  defendant,  for  she,  unaided  by  the 
purchaser,  acted  alone  in  making  the  sale.  An  accomplice  is  a 
person  involved  either  directly  or  indirectly  in  the  commission  of 
the  crime.  To  render  him  such,  he  must  in  some  manner  aid,  or 
assist,  or  participate  in  the  criminal  act,  and  by  that  connection  he 
becomes  equally  involved  in  guilt  with  the  other  party,  by  reason 
of  the  criminal  transaction.''  See  Com.  v.  WUliard,  22  Pick. 
4  7*>;  Com.  v.  Downing,  4  Gray,  20:  Campbell  v.  Com.  84  Pa. 
IsT:  Statt  v.McKean,B6  Iowa, 343, 14  Am. Kep.  530;  St.  Charles- 
v.  (TMaiUy,  IS  ill.  4<>7;  Smith  v.  State,  37  Ala.  472;  People  v. 
Farrell,  30  Cal.  316. 

Duer,  Ch.  •/..  says:  uThe  principle  deducible  from  the  cases 
undoubtedly  is,  that  an  accomplice,  although  a  competent  witness 
against  the  associates  and  partners  of  his  guilt  is,  nevertheless, 
only  admissible  from  reasons  of  judicial  necessity  and  policy,  and 
in  furtherance  of  the  essential  ends  of  public  justice.  And  the 
question  always  addresses  itself  to  the  discretion  of  the  court;  not 
to  their  judgment  as  to  the  general  competency  of  the  witness, 
but  to  their  sound  legal  discretion,  whether,  upon  a  full  consider- 
ation of  the  facts  and  circumstances  of  the  case,  he  shall  be  per- 
mitted to  testify  under  an  implied  promise  of  pardon,  which  vests 
in  him  an  equitable  title  thereto,  if  he  speaks  the  truth."  People 
v.  Whipple,  !»  Cow.  707. 

Accomplice's,  whether  related  as  principal  and  accessory  or 
equally  concerned  in  guilt,  are  competent  witnesses  for  each  other, 
except  when  under  a  joint  indictment.  If  tried  under  joint  in- 
dictment, whether  tried  together  or  separately,  neither  is  com- 
petent for  the  other.     Abbott,  Trial  Brief,  §  375. 

§  323.  Corroborative  Testimony  should  be  Required. — As 
we  have  seen,  it  is  competent  for  the  jury  to  convict  upon  the 
uncorroborated  testimony  of  an  accomplice,  and  when  corrobora- 
tion is  deemed  safe,  or  even  necessary,  the  rule  as  to  the  manner 
and  extent  of  the  corroboration  is  not  definitely  settled.  Learned 
judges  have  differed  on  the  subject.  Chief  Baron  Joy,  in  his 
treatise  on  the  Evidence  of  Accomplices,  page  OS,  after  reviewing 


EVIDENCE    AFFORDED    BY    ACCOMPLICES.  5U9 

the  cases,  says:  "The  only  rule,  therefore,  which  has  the  appear- 
ance of  reason  to  support,  is  that  which  I  have  endeavored  to 
show,  has  uniformly  and  without  an  exception  been  laid  down 
and  acted  upon  by  the  English  judges,  which  is,  that  the  'confir- 
mation ought  to  be  in  such  and  so  many  parts  of  the  accomplice's 
narrative  as  may  reasonably  satisfy  the  jury  that  he  is  telling 
truth,'  without  restricting  the  confirmation  to  any  particular 
points,  and  leaving  the  effect  of  such  confirmation  (which  may 
vary  in  its  effect,  according  to  the  nature  and  circumstances  of 
the  particular  case)  to  the  consideration  of  the  jury,  aided  in  that 
consideration  by  the  observations  of  the  judge."  In  Rex  v- 
Birkett,  1  Russ.  &  R.  251,  the  twelve  judges  agreed  that  "an 
accomplice  did  not  require  confirmation  as  to  the  person  he 
charged  if  he  was  confirmed  as  to  the  particulars  of  his  story." 

In  Reg.  v.  Farlar,  8  <  !ar.  &  P.  106,  Lord  Abinger,  Ch.  B.,  said: 
"It  is  a  practice  which  deserves  all  the  reverence  of  law  that 
judges  have  uniformly  told  juries  that  they  ought  not  to  pay  any 
respect  to  the  testimony  of  an  accomplice  unless  the  accomplice 
is  corroborated  in  some  material  circumstance.  Now,  in  my  opin- 
ion, the  corroboration  ought  to  consist  in  some  circumstance  that 
affects  the  identity  of  the  party  accused.  A  man  who  has  been 
guilty  of  a  crime  himself  will  always  be  able  to  relate  the  facts  of 
the  case;  and  if  the  confirmation  be  only  on  the  truth  of  that 
history,  without  identifying  the  persons,  that  is  really  no  corrobo- 
ration at  all.  The  danger  is  that  when  a  man  is  fixed,  and  knows 
that  his  own  guilt  is  detected,  he  purchases  immunity  by  falsely 
accusing  others."     State  v.  Chyo  OhiagJc,  02  Mo.  395. 

To  sufficiently  corroborate  the  testimony  of  the  accomplice 
there  should  be  some  fact  testified  to  entirely  independent  of  the 
accomplice's  evidence,  which,  taken  by  itself,  leads  to  the  infer- 
ence, not  only  that  a  crime  has  been  committed,  but  that  the 
defendant  is  implicated  in  it.  People  v.  Elliott,  5  JNT.  Y.  Crim. 
Rep.  204. 

Corroborative  evidence  is  any  evidence  which  properly  induces 
the  belief  that  the  facts  testified  to  by  the  accomplice  are  true. 
Rex  v.  Jones,  -*!1  How.  St.  Tr.  251,  325;  Thompson,  />.,in  Rex  v. 
Swallow,  31  How.  St.  Tr.  967,  980;  -Joy,  Evidence  of  Accom- 
plices, 68,  98.  Such  evidence  must  corroborate  some  material 
portion  of  the  accomplice's  testimony.  ( '<■>///.  v.  Bosworth,  22 
Pick.  397.     Material  testimony  is  such  testimony  as  may  properly 


510  LAW    OF    EVIDENCE    IN    CKIM1NAL    CASES. 

influence  the  result  of  the  trial.  Melluish  v.  Collier,  15  Q.  B. 
878;  Com.  v.  Merriam,  14  Pick.  518,  25  Am.  Dec.  420;  2  Bou- 
vier,  Law  Diet,  title  Materiality;  1  Stark.  Ev.  (4th  ed.)  822. 

Whenever  corroboration  is  required  it  must  be  as  to  material 
facts.  Pt  opli  v.  Plath,  100  K  Y.  593,  53  Am.  Kep.  236;  People 
v.  ( 'ourtney,  28  Hun,  589;  People  v.  Williams,  29  Hun,  520; 
Ormsby  v.  People,  53  X.  Y.  474;  Kenyon  v.  People,  26  N.  Y. 
2i» 7,  84  Am.  Dec.  177;  Boyce  v.  People,  55  K  Y.  645;  Armstrong1 
v.  People,  70  N.  Y.  38. 

The  corroborative  evidence  must  go  to  prove  the  entire  crime 
and  not  only  one  or  more  of  its  constituent  elements;  and  proof 
of  one  element  is  no  proof  of  another.  People  v.  Plath,  100  N. 
Y.  590,  4  N.  Y.  Crim.  Kep.  53.  "There  must  be  some  fact 
deposed  to  independently  altogether  of  the  evidence  of  the  accom- 
plice, which  taken  by  itself,  leads  to  the  inference  not  only  that 
a  crime  has  been  committed,  but  that  the  prisoner  is  implicated 
in  it."  People  v.  Plath,  supra.  "Such  evidence  as  merely  raises 
a  suspicion  of  guilt  is  insufficient  to  satisfy  the  requirement  of 
section  399;  the  evidence  must  carry  conviction  to  the  minds  of 
the  jury."  People  v.  Williams,  1  K  Y.  Crim.  Kep.  344.  "The 
corroboration  of  any  witness  needing  support  ought  to  be  by  some 
tact,  the  truth  or  falsehood  of  which  goes  to  prove  or  disprove 
the  offense  charged."     Frazer  v.  People,  54  Barb.  310. 

The  additional  evidence  here,  if  any,  being  purely  presumptive,. 
it  is  important  to  bear  in  mind  the  principles  by  which  the  pro- 
bate force  of  circumstantial  evidence  is  determined  and  measured. 
Peoplt  v.  Kennedy,  32  N.  Y.  145.  "All  proof  must  begin  at  a 
fixed  point.  The  law  never  admits  of  an  inference  from  an  infer- 
ence. Two  imperfect  things  cannot  make  one  perfect.  .  .  . 
The  circumstance  itself  from  which  the  inference  is  to  be  drawn, 
is  never  to  be  presumed,  but  must  be  substantially  proved;  for 
who  can  prove  one  doubtful  thing  by  another  ?"  Phillips,  Theory 
of  Presumptive  Proof;  Lawson,  Presumptions,  569.  "To  take 
pr<  sumptions  in  order  to  swell  an  equivocal  and  ambiguous  fact 
into  an  criminal  fact,  is  an  entire  misapprehension  of  the  doctrine 
of  presumptions."  Evans  v.  Evans,  1  Hagg.  Consist.  Rep.  105. 
"In  determining  a  question  of  fact  from  circumstantial  evidence, 
there  are  two  general  rules  to  be  observed;  First,  the  hypothesis 
of  guilt  should  flow  naturally  from  the  facts  proved,  and  be  con- 
tinent with  them  all;  second,  the  evidence  must  be  such  as  to 


EVIDENCE    AFFORDED    BY    ACCOMPLICES.  511 

exclude,  to  a  moral  certainty,  every  hypothesis  but  that  of  his 
guilt  of  the  offense  imputed  to  him;  or,  in  other  words,  the  facts 
proved  must  all  be  consistent  with  and  point  to  his  guilt  not 
only,  but  they  must  be  inconsistent  with  his  innocence."  People 
v.  Bennett,  49  N.  Y.  137;  People  v.  Stokes,  2  K  Y.  Crim.  Rep. 
382.  "If  the  facts  be  consistent  with  innocence,  they  are  no  proof 
of  guilt."  Ormsby  v.  People,  53  N.  Y.  475;  People  v.  Courtney, 
28  Hun,  593;  Preiser  v.  People,  54  Barb.  309;  Com.  v.  Holmes, 
127  Mass.  424,  34  Am.  Rep.  391.  "Conduct  being  susceptible  of 
two  opposite  explanations,  we  are  bound  to  assume  it  to  be  moral 
rather  than  immoral."  Port  v.  Port,  70  111.  484;  Mason  v.  State, 
32  Ark.  239;  Carroll  v.  Quynn,  13  Md.  379.  "Where  the  facts 
of  a  case  are  consistent  with  honesty  and  dishonesty,  a  judicial 
tribunal  will  adopt  the  construction  in  favor  of  innocence." 
Greenwood  v.  Lowe,  7  La.  Ann.  197.  "If  a  fair  construction  of 
the  acts  and  declarations  of  an  individual  do  not  convict  him  of 
an  offense — if  the  facts  may  all  be  admitted  as  proved,  and  the 
accused  be  innocent,  should  he  be  held  guilty?  .  .  .  He  may 
be  guilty,  but  he  may  lie  innocent."  United  States  v.  The  Bur- 
dett,  34  U.  S.  9  Pet.  082,  9  L.  ed.  273;  Frazer  v.  People,  54 
Barb.  306. 

§  324.  Extent  of  Corroboration  is  for  the  Jury.— The 
degree  of  evidence  which  shall  be  deemed  sufficient  to  corroborate 
the  testimony  of  the  accomplice,  is  for  the  determination  of  the 
jury.  The  law  is  complied  with  if  there  is  some  other  evidence 
fairly  tending  to  connect  the  defendant  with  the  commission  of 
the  crime  so  that  his  conviction  will  not  rest  entirely  upon  the 
evidence  of  the  accomplice.  People  v.  Everhardt,  104  N.  Y.  591. 
Among  the  authorities  that  may  be  cited  to  sustain  the  averments 
of  the  text  are  the  following:  Com.  v.  Holmes,  127  Mass.  424,  34 
Am.  Rep.  391;  People  v.  OP  Neil,  109  K  Y.  267;  State  v.  Maney, 
54  Conn.  178;  People  v.  Jaehne,  6  N.  Y.  Crim.  Rep.  237;  People 
v.  Kerr,  6  N.  Y.  Crim.  Rep.  406;  People  v.  Ridker,  7  N.  Y. 
Crim.  Rep.  22;  Berry  v.  People,  1  N.  Y.  Crim.  Re]).  57;  Peopl 
v.  Hooghherh,  96  K  Y.  149;  People  v.  Sherman,  103  N.  Y.  513; 
People  v.  Ryland,  97  K".  Y.  126;  Peopli  v.  Davis,  21  Wend.  309; 
People  v.  McCallam,  5  N.  Y.  Crim.  Rep.  143;  Maine  v.  People, 
9  Hun,  113;  People  v.  Sharp,  5  N.  Y.  Crim.  Rep.  388;  People  v. 
Lawton,  56  Barb.  126;  People  v.  Thomsen,  3  N.  V.  Crim.  Rep. 
562;  People  v.  Haynes,  55  Barb.  450;  People  v.  Emerson,  20  JN. 


512  LAW    OF    EVIDENCE    IN    CRIMINAL    CASES. 

Y.  S.  R.  18;  Frazer  v.  People,  54  Barb.  306;  People  v.  Runge, 
3  N.  Y.  Crim.  Rep.  85. 

We  have  seen  that  the  rule  requires  in  order  to  secure  a  convic- 
tion, that  the  evidence  of  an  accomplice  should  be  corroborated, 
but  this  corroboration  need  not  extend  in  matters  of  particularity 
to  the  entire  story  of  the  accomplice.  It  is  sufficient  if  the  sub- 
stance of  his  story  is  sustained  by  the  confirmatory  matter.  .£55- 
ttmjer  v.  Com.  Us  l'a.  338.  And  confirmation  maybe  found  in 
the  testimony  of  the  wife  of  the  accomplice.  State  v.  Myers,  82 
Mo.  558,  52  Am.  Rep.  389. 

The  province  of  corroborative  evidence  is,  by  confirming  the 
testimony  of  the  accomplice  in  regard  to  matters  which  are  not 
within  the  general  knowledge  but  likely  to  be  known  only  to 
those  engaged  in  the  crime,  to  induce  the  belief  that  he  is  to  be 
generally  credited  in  his  statements.  Its  weight  is  for  the  jury, 
and  there  is  no  established  rule  of  law  which  requires  the  judge, 
in  a  case  where  there  is  corroborative  evidence  of  this  character 
upon  matters  material  to  the  issue,  to  advise  the  jury  to  acquit 
unless  there  is  also  corroboration  of  the  statements  connecting  the 
defendant  with  the  crime.  Com.  v.  Scott,  123  Mass.  222,  25  Am. 
Rep.  81. 

In  Com.  v.  Bosworih,  22  Pick.  307,  the  court  says,  as  to  the 
kind  of  corroboration  required:  "It  is  perfectly  clear  that  it  need 
not  extend  to  the  whole  testimony;  but,  it  being  shown  that  the 
accomplice  has  testified  truly  in  some  particulars,  the  jury  may 
infer  that  he  has  in  others.  But  what  amounts  to  corroboration? 
We  think  the  rule  is,  that  the  corroborative  evidence  must  relate 
to  some  portion  of  the  testimony  which  is  material  to  the  issue." 
In  that  case  the  evidence,  held  to  be  competent  as  corroborative, 
confirmed  the  accomplice  as  to  a  fact  which  did  not  tend  to  con- 
nect the  defendant  with  the  crime.  Since  this  decision,  it  has 
been  usual  to  instruct  the  jury  in  substantial  compliance  with  the 
rule  stated  therein,  though  the  practice  of  different  judges  in  the 
exercise  of  their  discretion  has  varied.  Com.  v.  Brooks,  9  Gray, 
299;  Com.  v.  Price,  10  Gray,  472,  71  Am.  Dec.  668;  Com.  v. 
(>'  llr'nu.Vi  Allen.  183;  Com.  v.Zarrabee,  99  Mass.  413;  Com.  v. 
Elliot,  110  Mass.  104;  Com.  v.  Snow,  111  Mass.  411.  See  also 
Reg.  v.  Stubbs,  Dears.  C.  C.  555,  7  Cox,  C.  C.  48. 

The  principles  which  underlie  the  theories  previously  stated 
have  been  repeatedly  vindicated  by  modern  adjudication,  and  are 


EVIDENCE    AFFORDED    BY    ACCOMPLICES.  513 

so  thoroughly  in  harmony  with  the  most  obvious  principles  of 
justice,  that  in  many  jurisdictions  the  rule  has  emerged  from  its 
chrysalis  condition  and  assumed  the  more  dignified  proportions  of 
a  statutory  law.  Thus,  in  the  well  known  Penal  Code  of  Califor- 
nia, the  rule  is  concisely  stated  in  the  following  terms : 

"A  conviction  cannot  be  had  on  the  testimony  of  an  accomplice, 
unless  he  is  corroborated  by  other  evidence,  which  in  itself  and 
without  the  aid  of  the  testimony  of  the  accomplice,  tends  to  con- 
nect the  defendant  with  the  commission  of  the  offense,  and  the 
corroboration  is  not  sufficient,  if  it  merely  shows  the  commit,  m 
of  the  offense,  or  the  circumstances  thereof."  Desty,  Penal  Code 
of  California,  §  1111. 

In  the  New  York  Code  Criminal  Procedure,  §  399,  a  variant 
phraseology  is  employed  expressive  of  the  same  intent.  "A  con- 
viction cannot  be  had  upon  the  testimony  of  an  accomplice,  unless 
he  is  corroborated  by  such  other  evidence  as  tends  to  connect  the 
defendant  with  the  commission  of  the  crime." 

The  rule  as  to  corroboration  of  accomplices  is  stated  by  the 
court  in  People  v.  Plath,  100  X.  Y.  592,  53  Am.  Eep.  236,  as 
follows:  ''Incases  where  corroboration  is  required,  there  has 
been  some  diversity  of  opinion  in  the  authorities  as  to  the  partic- 
ular facts  which  should  be  corroborated  and  the  extent  of  the 
corroboration  needed  in  order  to  comply  with  the  rule;  but  it  is 
now  conceded  to  l>e  the  general  rule,  that  it  should  tend  to  show 
the  material  facts  necessary  to  establish  the  commission  of  a  crime, 
and  the  identity  of  the  person  committing  it.  When  an  offense 
was  formerly  proven  by  accomplices,  it  was  the  usual  practice  of 
trial  courts  to  advise  an  acquittal,  unless  such  evidence  was  in 
some  respects  corroborated  by  other  testimony,  although  at  com- 
mon law  a  conviction  upon  the  evidence  of  the  accomplice  alone 
was  sustainable.  In  those  cases,  the  extent  and  degree  of  cor- 
roboration rested  in  the  discretion  of  the  trial  court,  and  necessa- 
rily varied  according  to  the  circumstances  of  the  case.  Although 
such  cases  are  not  strictly  analogous  to  those  where  corroboration 
is  required  by  statute,  they  yet  furnish  sonic  help  in  determining 
the  degree  of  proof  required  in  the  latter  case.  The  rule  as  to 
the  corroboration  of  an  accomplice  is  stated  in  Roscoe,  Grim.  Ev. 
122,  as  follows:  'that  there  should  be  some  fact  deposed  to, 
independently  altogether  of  the  evidence  of  the  accomplice,  which, 
taken  by  itself,  leads  to  the  inference,  not  only  that  a  crime  lias 
33 


514:  LAW    OF    EVIDENCE    IN    CRIMINAL    CASES. 

been  committed,  but  that  the  prisoner  is  implicated  in  it.'  Kus- 
sell,  Crimes,  9(52,  says  :  '  that  it  is  not  sufficient  to  corroborate 
an  accomplice  as  to  the  facts  of  the  case  generally,  but  that  he 
must  be  corroborated  as  to  some  material  fact  or  facts  which  go 
to  prove  that  the  prisoner  was  connected  with  the  crime  charged.' " 

It  is  not  necessary  that  this  corroborative  evidence  of  itself 
should  be  sufficient  to  show  the  commission  of  the  crime,  or  to 
connect  the  defendant  with  it.  It  is  sufficient  if  it  tends  to  con- 
nect the  defendant  with  the  commission  of  the  crime.  Nor  need 
the  corroborative  evidence  be  wholly  inconsistent  with  the  theory 
of  the  defendant's  innocence.  The  court  should  be  satisfied  that 
there  is  some  corroborative  evidence  fairly  tending  to  connect  the 
defendant  with  the  commission  of  the  crime,  and  when  there  is, 
then  it  is  for  the  jury  to  determine  whether  the  corrol  (oration  is 
sufficient.  As  was  said  in  People  v.  Everhardt,  104  N.  Y.  591, 
"the  law  is  complied  with  if  there  is  some  evidence  fairly  tending 
to  connect  the  defendant  with  the  commission  of  the  crime,  so 
that  the  conviction  will  not  rest  entirely  upon  the  evidence  of  the 
accomplice."     People  v.  Elliott,  106  N.  Y.  288. 

Section  399  of  the  New  York  Code  of  Criminal  Procedure, 
provides  that  "conviction  cannot  be  had  upon  the  testimony  of 
an  accomplice  unless  he  be  corroborated  by  such  other  evidence 
as  tends  to  connect  the  defendant  with  the  commission  of  the 
crime."  Prior  to  the  enactment  of  this  section  it  was  customary 
for  judges  to  instruct  jurors  that  they  should  not  convict  a  defend- 
ant of  crime  upon  the  evidence  of  an  accomplice  unless  such  evi- 
dence was  corroborated;  and  yet  it  was  the  law  in  this  state  that  a 
defendant  could  be  convicted  upon  the  uncorroborated  evidence 
of  an  accomplice,  if  the  jury  believed  it.  This  section  has  changed 
that  rule  of  law  and  requires  that  there  should  be  simply  corrob- 
orative evidence,  which  tends  to  connect  the  defendant  with  the 
commission  of  the  crime.  People  v.  Evans,  40  N.  Y.  1;  People 
v.  Costello,  1  Denio,  83;  Com.  v.  Downing,  4  Gray,  29;  Whart. 
Am.  Crim.  L.  301;  1  Chitty,  Crim.  L.  904. 

Befo.e  the  enactment  of  this  code,  it  was  well  established  that 
a  conviction  of  crime  could  properly  be  had  upon  the  uncorrobo- 
rated testimony  of  an  accomplice.  People  v.  Costello,  1  Denio, 
86;  People  v.  Davis,  21  Wend.  313;  Lindsay  v.  People,  63  K  Y. 
143.  It  was  the  general  practice  of  trial  courts  to  charge  juries 
that  it  was  unsafe  to  convict  without  confirmation  of  an  accom- 


EVIDENCE    AFFORDED    BY    ACCOMPLICES.  515 

plice  as  to  some  material  fact  of  the  case ;  this  was  not  a  rule 
of  law,  but  rested  in  the  sound  discretion  of  the  court,  and  the 
omission  or  refusal  so  to  charge  was  not  error.  Lindsay  v.  Peo- 
ple, supra. 

( 'uses  would  necessarily  be  very  rare  in  which  there  would  not 
be  some  corroboration  of  the  accomplice  as  to  some  material  fact; 
and  it  was  entirely  safe  to  leave  the  question  of  the  credibility  of 
an  accomplice  in  the  hands  of  the  jury.  An  examination  of  the 
statute  and  of  the  cases  in  which  it  has  received  judicial  construc- 
tion will  clearly  demonstrate  the  truth  of  this  assertion. 

.In  Com.  v.  Bosworth,  22  Pick.  399,  Morton,  J.,  in  delivering 
the  opinion  of  the  court,  said  :  uWe  think  the  rule  is  that  the 
corroborative  evidence  must  relate  to  some  portion  of  the  testi- 
mony which  is  material  to  the  issue.  To  prove  that  an  accomplice 
had  told  the  truth  in  relation  to  irrelevant  and  immaterial  matters, 
which  were  known  to  everybody,  would  have  no  tendency  to 
confirm  his  testimony  involving  the  guilt  of  the  party  on  trial." 
See  also  Com.  v.  Holmes,  127  .Mass.  424.  34  Am.  Rep.  391;  Mar- 
ler  v.  State,  68  Ala.  580;  Watson  v.  Com.  95  Pa.  424;  State  v. 
Graf,  47  Iowa,  384;  Wddenv.  State,  10  Tex.  App.  400;  Best, 
Ev.  §  171.  We  have,  then,  the  rule  that  the  corroboration  must 
be  by  proof  of  some  fact  tending  to  connect  the  defendant  with 
the  commission  of  the  offense,  independently  of  the  testimony  of 
the  accomplice,  and  the  test  is  to  throw  out  all  other  evidence  and 
see  whether  the  evidence  introduced  tended  to  show  that  the 
defendant  wTas  connected  with  the  offense.  State  v.  Maney,  54 
Conn.  178. 

The  Texas  supreme  court  held,  in  considering  this  question  in 
Colejmcm  v.  State,  44  Tex.  109,  that  the  rule  of  law  forbidding  a 
conviction  on  the  testimony  of  an  accomplice,  unless  corroborated 
by  other  testimony  tending  to  connect  the  defendant  with  the 
offense  committed,  was  under  the  statute  positive  and  peremptory 
and  that  however  much  the  jury  might  be  disposed  to  credit  the 
accomplice,  the  defendant  could  not  be  convicted  legally,  unless 
the  evidence  of  the  accomplice  was  confirmed  in  some  material 
manner  tending  to  show  the  defendant's  guilt.  And  the  learned 
justice  said  in  that  case,  "To  allow  convictions  to  stand  where  the 
corroboration  is  only  in  immaterial  matters,  would  be  to  violate 
both  the  letter  and  spirit  of  the  statute,  and  to  disregard  these 
precautionary   rules    which   experienced   and   wise     jurists    have 


516  LAW    OF    EVIDENCE    IN    CRIMINAL    CASES. 

deemed  it  necessary  to  adopt  in  order  to  guard  against  erroneous 
convictions  based  on  evidence  unreliable,  because  coming  from  a 
corrupt  source."  And  in  the  case  of  State  v.  Thornton,  26  Iowa, 
80,  the  court  said :  "Admitting,  as  we  do,  that  corroborating 
evidence  is  to  be  sufficient,  must  not  merely  relate  to  the  commis- 
sion of  the  offense  or  the  circumstances  thereof,  but  must  be  evi- 
dence of  a  character  that  shall  connect  the  defendant  with  the 
commission  of  the  alleged  criminal  act,  it  is  the  opinion  of  the 
court  that  evidence  of  this  character  was  produced  by  the  state." 
The  corroborative  evidence  must  be  of  some  material  fact  and  this 
was  the  rule  in  reference  to  the  evidence  of  accomplices  in  this 
state,  if  corroboration  were  relied  upon,  and  indeed,  the  general 
rule.  What  appears  to  be  required  is,  that  there  should  be  some 
fact  deposed,  independently  altogether  of  the  evidence  of  the  ac- 
complice, which,  taken  by  itself,  leads  to  the  inference  not  only  that 
a  crime  has  been  committed,  but  that  the  prisoner  is  implicated  in 
it.  In  the  case  of  People  v.  Davis,  21  Wend.  309,  the  charge 
excepted  to  was  that  the  accomplices  of  the  prisoner  were  not  to 
be  believed  by  the  jury  unless  confirmed  by  other  credible  wit- 
nesses in  respect  to  the  facts  connecting  the  prisoner  with  the 
possession  of  the  forged  bills,  or  with  the  manufacture  of  them; 
but  the  court  declared  that  no  error  had  been  committed,  because 
it  was  not  necessary  by  existing  rules  that  every  part  of  the  testi- 
mony should  be  confirmed,  the  question  usually  being  whether 
the  jury  will  believe  the  witness  in  such  parts  of  his  narrative  as 
the  confirmation  extends  to,  and  quoted  with  approbation  by  the 
observation  of  Mr.  Justice  Anderson  in  summing  up  the  case  of 
Hex  v.  Wilkes,  7  Car.  &  P.  272,  namely,  that  the  confirmation  he 
always  advised  juries  to  require,  was  the  confirmation  of  the  ac- 
complice in  some  facts  which  went  to  fix  the  guilt  on  the  partic- 
ular person  charged. 

This  subject  has  been  very  largely  discussed.  Xote  to  Ala.  Code 
of  1SS6,  §1176;  1  Am.&Eng.  Enc.  Law,  78;  note  to  Com.  v.  Price, 
10  Gray,  172,  71  Am.  Dec  671;  Lumpkin  v.  State,  68  Ala.  56; 
People  v.  Haynes,  55  Barb.  450;  People  v.  Clough,  73  Cal.  318. 
The  fullest  and  ablest  discussion  of  the  question  to  which  our 
attention  has  been  directed  is  in  Com.  v.  Holmes,  127  Mass.  421, 
34  Am.  Rep.  391.  The  opinion  was  by  Gray,  Ch.  J.,  now  Asso- 
ciate Justice  of  the  Supreme  Court  of  the  United  States.  Among 
other  things,  he  said:     "Evidence  which  tends  to  prove  the  guilt 


EVIDENCE    AFFORDED    BY    ACCOMPLICES.  517 

of  the  defendant  is  sufficient  by  way  of  corroboration,  although  it 
does  not  directly  confirm  any  particular  fact  stated  by  the  accom- 
plice; as,  for  instance,  evidence  of  the  possession  of  stolen  goods, 
by  one  indicted  for  stealing  or  receiving  them."  In  Hoss  v.  State, 
74  Ala.  532,  the  corroboration  was  not  of  any  particular  fact  tes- 
tified to  by  the  accomplice.  The  corroboration  relied  on  was, 
first,  the  flight  of  the  defendant,  and,  second,  proximity  and 
opportunity  for  committing  the  crime,  it  having  been  committed 
at  an  unreasonable  hour.  The  trial  court  left  it  to  the  jury  to 
decide  whether  these  two  facts  sufficiently  corroborated  the  testi- 
mony of  the  accomplice  as  to  authorize  the  jury  to  convict 
upon  it. 

§  325.  Cross-examination  of  an  Accomplice. — A  trial  court 
should  permit  the  defense  in  the  cross-examination  of  an  accom- 
plice to  go  into  every  species  of  questioning  that  can  affect  or 
impair  his  credit  as  a  witness.  The  extent  of  cross-examination 
under  such  circumstances  and  for  such  a  purpose,  is  largely 
within  the  discretion  of  the  trial  court;  and  unless  the  evidence 
shows  that  discretion  to  have  been  grossly  abused,  the  appellate 
court  will  not  reverse.     Marler  v.  State,  07  Ala.  55. 

It  is  another  rule  well  recognized  in  cases  where  an  accomplice 
gives  evidence  for  the  commonwealth,  that  the  defendant  may 
show  a  promise  on  the  part  of  the  district  attorney  to  quash  an 
indictment  as  to  him.      United  States  v.  Hinz,  35  Fed.  Rep.  272. 

The  act  of  an  accomplice  in  testifying  for  the  state,  so  as  to 
criminate  himself  with  others,  is  voluntary.  He  could  not  be 
compelled  to  do  so.  He  testifies  for  the  state,  under  a  promise 
of  favor,  express  or  implied,  on  condition  that  he  will  make  a  full 
statement  and  confession  in  regard  to  the  matter.  His  testimony 
conies  in  such  a  questionable  shape,  that  it  should,  in  the 
interest  of  truth  and  justice,  be  subjected  to  the  severest  scrutiny 
and  acted  on  with  the  greatest  caution.  There  is  no  case  in  which 
cross-examination  is  more  desirable  or  important  to  test  the  credit 
of  a  witness,  than  that  in  which  one  man  is  sec  king  to  save  his 
own  life  or  liberty,  by  swearing  away  the  life  or  liberty  of  others. 

But  when  one  jointly  indicted  with  others,  turns  state's  evi- 
dence, and  attempts  to  convict  others  by  testimony  which  also 
convicts  himself,  the  rule  must  be  different,  and  he  has  no  right 
to  claim  any  privilege  concerning  any  of  the  facts  pertinent  to  the 
issue,  nor  any  exemption   from   the  broadest   latitude  of  cross-: 


513  LAW    OF    EVIDENCE    IN    CRIMINAL    CASES. 

examination.  He  thereby  waives  all  privileges  against  criminat- 
ing himself  and  against  disclosing  communications  between  him- 
self and  his  counsel  touching  the  offense  charged.  Both  client 
and  counsel  may,  in  such  case,  be  compelled  to  disclose  such  com- 
munications. Alderman  v.  People,  4  Mich.  414;  Foster  v.  Peo- 
ple, IS  Mich.  266;  Hamilton  v.  People,  29  Mich.  173. 

The  reason  for  maintaining  such  privileges  ceases,  when  one 
has  voluntarily  exposed  himself  by  his  own  testimony,  to  the  very 
consequences  from  which  it  was  intended  by  the  privilege  to  pro- 
tect him.  To  preserve  such  privilege  in  such  case  would  be 
worse  than  vain,  for  while  it  could  not  help  the  witnesses,  it 
might,  by  withholding  the  only  means  of  contradicting  and  im- 
peaching him,  operate  with  the  greatest  injustice  towards  the 
party  on  trial.     Jones  v.  State,  65  Miss.  179. 

§  326.  Rights  of  an  Accomplice  Wiving  Evidence  for  the 
State. — In  an  application  to  nolle  pros,  an  indictment  against  an 
accomplice  who  has  given  evidence  for  the  commonwealth  which 
has  led  to  the  conviction  of  other  offenders,  it  is  always  competent 
in  order  to  secure  the  desired  immunity.  From  a  very  early 
period  this  principle  has  been  recognized  in  English  criminal  law 
and  the  American  courts  have  followed  the  precedent  with  rigid 
uniformity.  Perhaps  an  exception  was  made  in  the  case  of 
People  v.  Faulkner  (not  reported)  where  the  district  attorney, 
owing  to  the  pressure  of  public  sentiment,  refused  to  nolle p>ros. 
the  indictment  and  the  accomplice  was  consequently  imprisoned. 
The  facts  disclosed  were  of  substantially  the  following  import. 
On  September  20,  1890,  Lester  B.  Faulkner  and  his  brother 
James  were  indicted,  tried,  and  convicted  on  the  charge  of 
wit  eking  the  First  National  Bank  of  Dansville,  X.  Y.,and  were 
sentenced  to  five  years'  imprisonment  in  the  Erie  county  peni- 
tentiary. The  case  was  appealed  and  while  the  appeal  was  pend- 
ing Lester  Faulkner  died.  So  far  as  James  Faulkner  was 
concerned  the  appeal  amounted  to  nothing  and  he  entered  the 
penitentiary  on  January  26,  1891.  On  the  trial  James  Faulkner 
was  a  witness  against  his  brother,  jointly  indicted  with  him,  and 
it  was  believed  at  the  time  that  the  conviction  of  Lester  would 
have  been  possible  without  his  evidence.  It  was  expected  that 
the  prosecuting  officers  would  make  a  plea  for  clemency  in  the 
case  of  James  because  of  his  testimony;  but  the  people  of  Dans- 
ville demanded  the  punishment  of  both  brothers  and  no  plea  was 


EVIDENCE    AFFORDED    BY    ACCOMPLICES.  519 

made  to  the  mercy  of  the  court.  Satisfactory  evidence  of  these 
facts  having  been  brought  to  the  attention  of  the  Attorney  Gen- 
eral of  the  United  States,  and  through  him  to  President  Harrison 
the  latter  issued  an  unconditional  pardon  to  the  accomplice  "be- 
cause I  am  advised  that  the  United  States  having  used  the 
prisoner  against  one  jointly  indicted  (his  brother)  an  equitable 
right  to  clemency  under  the  decision  of  the  Supreme  Court  is 
established.  This  right,  if  it  can  be  called  such,  could  not  be 
enforced,  but  as  it  has  become  a  settled  rule  in  criminal  procedure, 
I  very  reluctantly  act  upon  it."  The  action  of  the  president  is 
under  date  of  August  2,  1892,  and  illustrates  the  tenacity  with 
which  our  criminal  courts  adhere  to  the  early  precedent.  The 
custom  of  allowing  one  criminal  to  turn  state's  evidence  against 
another  is  abominable,  and  the  promise  of  immunity,  express  or 
implied,  seems  a  very  vicious  sort  of  bribery,  but  public  officials 
often  resort  to  this  scheme  and  claim  that  it  serves  the  ends 
■of  justice.  The  claim  for  pardon  in  Faulkner's  behalf,  therefore, 
while  discreditable  to  him  seems  to  be  good  against  the  govern- 
ment which  has  used  him. 

"We  can  find  no  warrant  for  this  doctrine  of  exemption  either 
in  the  legal  principles  belonging  to  the  subject  or  in  the  ad  indi- 
cations— it  seems  wholly  dependent  for  its  effectiveness  upon  "  a 
doubtful  expediency." 

Accomplices,  although  admitted  as  witnesses  for  the  prosecu- 
tion, are  not  of  right  entitled  to  a  pardon,  but  have  only  an  equit- 
able right  to  a  recommendation  to  the  executive  clemency. 
United  States  v.  Ford  ("  Whiskey  Cases")  99  U.  S.  594,  25  L.  ed. 
399,  and  it  further  appears  that  the  district  attorney  had  no  au- 
thority to  make  an  agreement  that  if  a  person  charged  with  an 
offense  would  testify  against  his  accomplices,  he  should  be  exempt 
from  prosecution.  United  States  v.  Ford.  ({'Whiskey  Cases") 
supra. 

§  327.  Rule  as  to  Co-defendants  who  have  Pleaded  Guilty. 
— An  interesting  question  frequently  arises  in  a  criminal  prosecu- 
tion, when  it  appears  that  a  co-defendant  or  accomplice  has 
pleaded  guilty,  but  lias  not  been  sentenced,  and  the  prosecution 
wish  to  call  him  as  a  witness. 

It  has  been  held  that  a  co-defendant,  who  has  not  been  tried, 
cannot  be  called  as  a  witness  for  one  put  on  trial  separately. 
Com.  v.  liars//,  10  Pick.  57.    So  it  has  been  held,  in  New  York, 


520  LAW    OF    EVIDENCE    IN    CRIMINAL    CASES. 

that  a  party  in  the  same  indictment  cannot  be  a  witness  for  his 
co-defendant,  upon  his  trial,  until  he  has  been  acquitted  or  con- 
victed. People  v.  Bill,  10  Johns.  95.  But  the  reason  does  not 
apply  to  one  who,  by  conviction  of  his  own  confession,  has  ceased 
to  be  a  party  to  the  issue  to  be  tried.  Rex  v.  Fletcher,  1  Strange, 
633.  And  in  a  late  case,  where  a  co-defendant  had  pleaded  guilty 
to  a  charge  of  house  breaking,  and  was  called  as  a  witness,  before 
sentence,  he  was  admitted.  Reg.  v.  George,  Car.  &  M.  111.  See 
also  1  Phil.  &  Am.  Ev.  29,  70. 

A  recent  decision,  says :  "  After  a  party  has  been  adjudged 
guilty  or  not  guilty  by  a  verdict,  or  has  voluntarily  admitted  his 
guilt  by  plea,  he  has  no  longer  any  interest  in  the  proceedings  in 
court  to  determine  the  guilt  or  innocence  of  the  others  named  in 
the  indictment.  He  has  ceased  to  be  a  party  to  the  issue  to  be 
tried."  State  v.  Jones,  51  Me.  125.  But  see  Henderson  v.  State, 
70  Ala.  23, 45  Am.  Rep.  72. 

The  American  courts  are  not  agreed  with  regard  to  the  ques- 
tion. The  leading  case  in  favor  of  the  exclusion  of  a  co-defend- 
ant iu  an  indictment  as  a  witness  for  one  of  his  fellows,  who  has 
a  separate  trial,  is  that  of  People  v.  Bill,  10  Johns.  95.  It  is 
there  said  that  "it  appears  to  be  a  technical  rule  of  evidence,  and 
one  well  settled,  that  a  party  in  the  same  suit  or  indictment  can- 
not be  a  witness  for  his  co-defendant  until  he  has  been  first 
acquitted,  or,  at  least,  convicted."  And  the  court  further  declares 
that  whether  the  defendant  be  tried  jointly  or  separately  does  not 
vary  the  rule.  This  doctrine,  so  far  as  it  relates  to  defendants 
jointly  tried,  is,  of  course,  indisputable,  but  its  extension  beyond 
that  point  I  do  not  think  is  sustained  by  any  decision  which  we 
are  bound  to  receive  as  a  common  law  guide.  Lord  Ellenborough, 
in  Rex  v.  Lafone,  5  Esp.  155,  rejected  a  co-defendant  as  a  wit- 
ness on  a  joint  indictment  for  a  misdemeanor,  although  he  had  let 
judgment  go  by  default.  But  this  ruling  is  now  universally  ad- 
mitted to  be  erroneous.  In  truth,  I  think  it  may  be  said  to  be 
incontestable  that  the  English  decisions  do  not  warrant  the  asser- 
tion contained  in  the  case  of  People  v.  Bill,  supra. 

The  case  of  People  v.  Donnelly,  2  Park.  Crim.  Rep.  182,  1 
Abb.  Pr.  459,  is  occasionally  cited  as  an  authority  sustaining  the 
proposition  that  a  party  to  the  same  indictment  cannot  be  exam- 
ined as  a  witness  and  give  evidence  against  a  co-defendant  to  the 
same  indictment.     This  case  was  expressly   overruled  in    Wixson 


EVIDENCE   AFFORDED    BY    ACCOMPLICES.  521 

v.  People,  5  Park.  Crim.  Rep.  119,  by  the  general  term  of  the 
seventh  district,  and  in  the  latter  case  it  was  shown  in  a  careful 
opinion  by  the  late  Mr.  Justice  Knox,  that  it  was  only  in  cases 
where  the  defendants  to  the  indictment  were  tried  together,  that 
one  is  an  incompetent  witness  in  behalf  of  the  other.  Such  was 
the  case  of  Rex  v.  Rowland,  1  Ryan  &  M,  401.  In  the  cases  of 
People  v.  Bill,  M  Johns.  95;  People  v.  Williams,  lit  Wend.  377 
and  Mclntyn  v.  People,  9  N.  Y.  38,  and  in  those  cases  in  other 
states  which  have  been  decided  on  the  authority  of  People  v. 
Bill,  supra,  such  as  Com.  v.  Marsh,  10  Pick.  57,  and  Campbell 
v.  Com.  2  Va.  ('as.  .",14,  the  witness  was  offered  to  be  examined  in 
behalf  of  a  co-defendant.     Taylor  v.  People,  12  Hun,  212. 

It  is  said  in  Lindsay  v.  People,  63  X.  Y.  143,  that  "accom- 
plices may,  in  all  cases,  by  permission  of  the  court,  be  used  by  the 
government  as  witnesses  in  bringing  their  confederates  and  asso- 
ciates to  punishment.  .  .  .  There  is  no  practice  in  Xew  York 
requiring  a  previous  application  or  a  formal  order  of  the  court  to 
permit  an  accomplice  to  become  a  witness  for  the  state/' 

Accomplices  when  under  a  joint  indictment  are  not  competent 
witnesses  for  each  other.  But  where  •<>■  nollt  prosequi  has  been 
entered  against  one  the  disqualification  is  removed.  The  reason 
for  excluding  him  as  a  witness  against  his  fellow  does  not  apply 
after  his  conviction  on  his  own  confession  as  he  has  then  ceased  to 
be  a  party  to  the  issue.  Com.  v.  Smith,  12  Met.  23S.  "After  a 
party  has  been  adjudged  guilty  or  not  guilty  by  a  verdict,  or  has 
voluntarily  admitted  his  guilt  by  plea,  he  has  no  longer  any  inter- 
est in  the  proceedings  in  court  to  determine  the  guilt  or  innocence 
of  the  others  named  in  the  indictment.'  He  has  ceased  to  be  a 
party  to  the  i>sue  to  be  tried.'"     State  v.  Jones,  51  Me.  125. 

If  an  accomplice  being  fully  aware  of  his  privileges  .-till  volun- 
teers as  a  witness  in  the  case  and  so  gives  criminating  testimony, 
he  cannot  subsequently  refuse  to  answer.  "He  cannot  be  allowed 
to  state  such  facts  only  as  he  pleases  to  state,  and  so  withhold 
other  fact-."     ( 'om.  v.  Price,  10  Gray,  472,  71  Am.  Dec.  668. 

This  entire  question  relating  to  the  evidence  of  an  accomplice 
is,  in  many  jurisdictions,  regulated  by  statute.  Thus  in  Massa- 
chusetts "the  accomplice  having  offered  himself  as  a  witness,  his 
testimony  was  competent  for  and  against  the  other  defendants,  as 
well  as  himself."  Mass.  Stat.  L 870,  chap.  393,  §1,  cl.  3.  See 
also  Com.  v.  Nichols,  114  Mass.  285,  1'.)  Am.  Rep.  340;    Com.  v. 


•522  LAW    OF    EVIDENCE    IN    CRIMINAL    CASES. 

Mobinson,  1  Gray,  555.  The  court  might  permit  the  common- 
wealth to  introduce  any  competent  evidence  at  any  stage  of  the 
trial,  even  after  it  had  once  rested  its  case.  Com.  v.  Blair,  126 
Mass.  40. 

§  328.  Credibility  of  Accomplice  is   for  the  Jury. — The 

credibility  of  an  accomplice,  in  respect  to  all  his  testimony,  is  for 
the  jury.  They  may  require  corroboration  in  respect  to  that  part 
of  it  in  which  he  states  his  own  connection  with  the  crime.  Man- 
ifestly if  the  defense  had  questioned  that,  the  evidence  objected 
to  would  have  been  admissible  for  that  purpose.  But  the  credi- 
bility of  such  a  witness  is  for  the  jury  as  to  all  that  he  says. 
Plence  any  fact  or  circumstance  which  tends  to  corroborate  in  a 
slight  degree  any  part  of  his  testimony  is  admissible.  It  was  so 
held  in  State  v.  Wolcott,  21  Conn.  272.  In  that  case  the  accom- 
plice detailed  two  conversations  which  he  had  with  the  prisoners, 
or  one  of  them,  in  which  they  related  to  him  conversations  which 
they  had  had  with  third  parties.  The  third  parties  were  admitted 
t« '  testify  that  they  in  fact  had  such  conversations,  although  there 
was  nothing  in  either  conversation  in  itself  which  tended  to  crim- 
inate the  prisoners.  The  court  by  Church,  Ch.  J.,  say  they 
"showed  a  privity  and  connection  and  a  conspiracy  between  Dick- 
erman  and  the  prisoners,"  and  that  Dickerman  "was  their  confi- 
dant, to  whom  theyjmparted  their  plans  and  their  motives,  as  lie 
had  testified."     State  v.  Maney,  51  Conn.  178. 

§  329.  Evidence  of  Detectives,  Decoys  and  Spies. — A  man 
who  will  deliberately  ingratiate  himself  into  the  confidence  of 
another,  for  the  purpose  of  betraying  that  confidence,  and,  while 
with  words  of  friendship  from  his  lips,  he  is  seeking  by  every 
means  in  his  power  to  obtain  an  admission  which  can  be  tortured 
into  a  confession  of  guilt,  which  he  may  blazon  to  the  world  as  a 
means  to  accomplish  the  downfall  of  one  for  whom  he  professes 
great  friendship,  cannot  be  possessed  of  a  very  high  sense  of 
honor,  or  of  moral  obligation.  Hence  the  law  looks  with  suspi- 
cion on  the  testimony  of  such  witnesses,  and  the  jury  should  be 
specially  instructed  that  in  weighing  their  testimony,  greater  care 
is  to  be  exercised  than  in  the  case  of  witnesses  wholly  disinter- 
ested. Preuit  v.  People,  5  JSTeb.  377.  The  weight  to  be  given 
to  such  evidence  is  a  question  for  the  jury,  and  cannot  be  urged 
against  its  admissibility.  The  confession,  however,  seems  to  have 
been  voluntary,  although  made  to   one  who  deliberately  and  re- 


EVIDENCE    AFFORDED    BY    ACCOMPLICES.  523 

peatedly  deceived  and  made  false  statements  to  the  plaintiff  to 
obtain  it.  It  is  doubtful  if  anything  is  really  gained  in  the  ad- 
ministration of  the  law  from  the  admission  of  such  testimony,  and 
the  consequent  encouragement  of  the  courts  of  the  practice.  If 
it  is  answered  that  confessions  are  thus  obtained  which  otherwise 
could  not  be  had,  it  may  be  said,  in  reply,  that  the  same  is  true 
of  the  rack  and  wheel,  by  means  of  which  confessions  were  form- 
erly forced  from  its  victims,  but  which  experience  showed  were 
entirely  unreliable.  So  far  as  appears,  the  plaintiff  confided  in 
this  man  as  a  friend,  and  was  betrayed  by  this  professed  benefac- 
tor. The  testimony  of  such  a  man  may  be  entitled  to  very  little 
credence,  yet  it  must  be  submitted  to  the  jury.  Held  v .  State,  20 
Neb.  492,  57  Am.  Rep.  835,  9  Crim.  L.  Mag.  248. 

In  April,  1885,  at  the  Southern  Hotel  in  the  city  of  St.  Louis, 
Charles  Arthur  Preller  was  murdered  under  circumstances  of 
exceptional  atrocity.  The  body  was  dissected,  packed  in  a  trunk, 
and  left  in  the  room  occupied  by  the  deceased.  The  murderer 
was  apprehended  in  New  Zealand  and  subsequently  brought  to 
trial.  With  the  connivance  with  the  state's  attorney,  a  detective 
under  the  alias  of  Dingfelder  secured  an  indictment  against  him- 
self from  the  grand  jury  and  procured  his  incarceration  in  the 
same  cell  with  Brooks,  for  a  period  of  forty-seven  days,  the 
alleged  murderer  of  Preller.  While  so  confined,  by  infamous 
deception,  he  secured  from  Brooks  what  purported  to  be  a  con- 
fession; and  at  the  subsequent  trial  under  objection  from  the 
defense  he  was  allowed  to  give  evidence  of  this  confession. 
Chief  Justice  Norton  on  review  of  the  case  in  the  appellate  court 
makes  use  of  the  following  language  in  regard  to  this  testimony: 
"While  the  officers  whose  duty  it  was  to  prosecute  criminal 
offenses,  may,  in  their  anxiety  to  ferret  out  the  circumstances  con- 
cerning the  death  of  Preller,  have  overstepped  the  bounds  of  pro- 
priety in  the  course  pursued  by  them,  which  is  not  to  be  com- 
mended, but  condemned,  it  affords  no  legal  reason  for  rejecting 
the  evidence  and  not  letting  it  go  to  the  jury,  whose  peculiar  prov- 
ince it  was  to  pass  upon  the  credibility  of  the  witness  who  detailed 
the  confession  and  give  to  it  such  weight  as,  under  the  circum- 
stances, they  believed  it  entitled  to.  It  was  for  the  court  to  say 
what  evidence  should  be  received  and  for  the  jury  to  say  what 
weight  it  should  have  when  received. 

"In  Missouri  the  following  authorities  establish  the  proposition 


524  LAW    OF    EVIDENCE    IN    CRIMINAL    CASES. 

that  an  extra-judicial  confession,  uncorroborated  and  without 
proof  aliunde  that  the  crime  lias  been  committed,  will  not  justify 
a  conviction.  Robinson  v.  State,  12  Mo.  592;  State  v.  Scott,  39  Mo. 
424;  State  v.  Gt ,  man,  :.4  Mo.  526,  14  Am.  Rep.  481;  State  v.  Pat- 
terson, 73  Mo.  695 ; "  State  v.  Brooks,  10  West.  Kep.  679,  92 
Mo.  542. 

Many  authorities  of  high  repute  hold  that  the  confessions  of  a, 
prisoner  even  when  obtained  by  artiiice,  cunning,  falsehood,  and 
deception  are  admissible  in  evidence,  especially  where  the  purported 
confession  is  corroborated  by  other  circumstances  in  evidence. 
The  corollary  of  this  proposition  is,  that  the  discredit  of  an  accom- 
plice does  not  attach  to  a  detective  who  identifies  himself  with  a 
criminal  organization  with  a  view  to  exposing  it,  and  this  even 
where  it  appears  that  he  assisted  in  and  apparently  approved  many 
of  its  councils  and  methods.  Ileldt  v.  State,  20  Neb.  492,  57  Am. 
liep.  835;  State  v.  Patterson,  73  Mo.  695;  Campbell  v.  Com.  84 
Pa.  1ST;  State  v.  Hojpkirk,  84  Mo.  278;  Rex  v.  Despard,  28  How. 
St.  Tr.  346;  State  v.  Phelps,  74  Mo.  128;  State  v.  McKean,  36 
Iowa,  343,  14  Am.  Eep.  530;  State  v.  Fredericks,  85  Mo.  145; 
People  v.  Bolanger,  71  Cal.  21;  Wharton,  Crim.  Ev.  440. 

The  act  of  a  detective  may,  perhaps,  be  not  imputable  to  the  de- 
fendant, as  there  is  a  want  of  community  of  motive.  The  one  has  a 
criminal  intent,  while  the  other  is  seeking  the  discovery  and  pun- 
ishment of  crime.  State  v.  Jansen,  22  Kan.  498.  Where  the 
owner  learns  that  his  property  is  to  be  stolen,  he  may  employ 
detectives  and  decoys  to  catch  the  thief.  And  we  can  do  no  bet- 
ter than  to  quote  again  from  Judge  Brewrer,  in  the  case  above 
cited,  as  to  the  relation  of  the  acts  of  detectives  and  the  thief, 
when  a  crime  is  alleged  to  have  been  committed  by  the  two.  He 
says:  "Where  each  of  the  overt  acts  going  to  make  up  the  crime 
charged  is  personally  done  by  the  defendant,  and  with  criminal 
intent,  his  guilt  is  complete,  no  matter  what  motives  may  prompt, 
or  what  acts  done  by  the  party  who  is  with  him,  and  apparently 
assisting  him.  Counsel  have  cited  and  commented  upon  several 
cases  in  which  detectives  figured,  and  in  which  defendants  were 
adjudged  guiltless  of  the  crimes  charged.  But  this  feature  dis- 
tinguishes them,  that  some  act  essential  to  the  crime  charged  was 
in  fact  done  by  the  detective,  and  not  by  the  defendant,  and  this 
act  not  being  imputable  to  the  defendant,  the  latter's  guilt  was 
not  made  out.     The  intent  and  act  must  combine;  and  all  the  ele- 


EVIDENCE    AFFORDED    BY    ACCOMPLICES.  525 

ments  of  the  act  must  exist,  and  be  imputable  to  the  defendant." 
See  State  v.  Hayes,  105  Mo.  70,  24  Am.  St.  Rep.  360. 

A  policeman,  by  pretending  to  be  an  accomplice,  may  obtain 
access  to  a  chamber  where  counterfeiting  instruments  are  collected; 
but  this  does  not  prevent  a  conviction  being  rendered  on  his  tes- 
timony. Wills,  Circ.  Ev.  117,  118.  The  guilty  party  may  be 
induced  by  a  trap  to  offer  the  counterfeit  coin,  but  this  does  not 
make  the  offering  the  counterfeit  coin  any  the  less  indictable. 
Bex  v.  Iloiden,  Russ.  &  R.  151,  2  Taunt.  334.  Now,  does  the 
fact  that  a  detective  attends  unlawful  meetings  for  the  purpose  of 
afterwards  disclosing  their  secrets  and  becoming  a  witness  against 
the  wrong-doers  make  him  an  accomplice  i  Beg.  v.  Bernard,  1 
Fost.  &  F.  240;  Beg.  v.  Mullins,  3  Cox,  C.  C.526;  Com.  v.  Down- 
ing, 4  Gray,  29;  Com.  v.  Wood,  11  Gray,  86;  Com.  v.  Cohen.  127 
Mass.  282;  Campbell  v.  Com.  S4  Pa.  1ST;  State  v.  McKea,  36 
Iowa,  343,  14  Am.  Rep.  530;  People  v.  Farrell,  30  Cal.316;  Peo- 
ple v.  Barrio,  49  Cal.  342;  Williams  v.  State,  55  Ga.  391;  Wright 
v.  State,  7  Tex.  App.  574,  32  Am.  Rep.  599. 

One  of  the  most  nefari<  >us  and  infamous  conspiracies  ever  known 
in  this  country — that  of  the  "Molly  Maguires,"  in  1S76,  to  coerce 
by  assassination  the  coal  proprietors  of  the  Pennsylvania  anthra- 
cite region — was  exploded,  and  the  chief  perpetrators  brought  to 
justice  by  the  sagacity  and  courage  of  a  detective  who  attended 
the  meetings  of  the  conspirators  and  thus  became  possessed  not 
only  of  their  plans  for  the  future  but  of  their  exploits  in  the  past. 
The  fact  is,  there  is  no  crime  that  is  committed  under  the  influ- 
ences of  some  sort  of  decoy,  and  to  acquit  in  all  cases  where  the 
offender  is  incited  to  the  crime  by  some  instigation  of  this  kind 
would  leave  few  cases  in  which  there  could  be  a  conviction.  If 
the  decoy  is  not  intentional  it  may  act  by  the  way  of  negligence; 
and  if  an  intentional  decoy  is  a  ground  for  defense  so  should  be  a 
negligent  decoy.  Rut  it  is  now  well  settled  that  contributory 
negligence,  unless  breaking  the  casual  relation  between  the  offender 
and  the  offense,  is  no  defense.  Bex  v.  Kew,  12  Cox,  C.  C.  355; 
Bex  v.  Forbes,  7  Car.  &  P.  224;  Beg.  v.  Parish,  8  Car.  &  P.  04; 
Beg.  v.  Beard.  8  Car.  A:  P.  143;  Bates  v.  United  States,  L0  Fed. 
Rep.  92,  note  by  Francis  Wharton. 

The  fact  that  postoffice  inspectors  resorted  to  test  or  decoy  let- 
ters in  order  to  bring  to  justice  a  person  suspected  of  using  the 
mails  for  the  circulation  of  obscene  literature,  does  not  operate  to 


526  LAW    OF    EVIDENCE    IN    CRIMINAL    CASES. 

discredit  their  testimony  upon  the  trial  of  that  person  for  that 
offense,      raited  States  v.  Slenker,  32  Fed.  Kep.  691. 

There  is  a  difference  between  detecting  and  decoying,  between 
traps  and  invitations,  between  contrivances  to  expose  and  contri- 
vances of  participation  by  an  owner.  So  if  the  owner  delivers 
property  to  the  would-be  thief,  this  is  no  larceny.  In  like  manner 
the  decoy  must  not  himself  commit  any  ingredient  of  the  actwhich 
it  is  necessary  for  the  criminal  to  commit  in  order  to  constitute 
the  offense;  as  leaving  the  outer  door  open  or  opening  it  to  admit 
the  burglar.  Dillon,  J.,  observed  in  United  States  v.  IV/tittier,  5 
Dill.  35:  ''There  is  a  class  of  cases  in  respect  of  larceny  and  rob- 
bery in  which  it  is  held  that  where  one  person  procures,  or  orig- 
inally induces  the  commission  of  the  act  by  another,  the  person 
who  does  the  act  cannot  be  convicted  of  these  particular  crimes, 
although  he  supposed  he  was  taking  the  property  without  the  con- 
sent or  against  the  will  of  the  owner.  .  .  .  The  reason  is 
obvious,  viz:  the  taking  in  such  cases  is  not  against  the  will  of  the 
owner,  which  is  the  very  essense  of  the  offense,  and  hence  no 
offense,  in  the  eye  of  the  law,  has  been  committed.  The  offender 
may  be  as  morally  guilty  as  if  the  owner  had  not  consented,  but 
a  necessary  ingredient  of  legal  guilt  is  wanting."  Citing  Rex  v. 
Eggington,  2  Bos.  &  P.  508;  State  v.  Covington,  2  Bail.  L.  569;. 
Dodge  v.  Brittain,  Meigs,  84;  Alexander  v.  State,  12  Tex.  540^ 
Rex  v.  McDanieL  Fost.  C.  C.  121. 


CHAPTER  XLII. 
DYING  DECLARATIONS. 

§  330.  Characteristics  and  Scope  of. 

331.  Admissible  only  when  Death  is  the  Subject  of  the  Cliarge- 

332.  Not  Competent  in  Cases  of  Abortion. 

333.  Admitted  on  Grounds  of  Necessity  (done. 

334.  An  Exception  to  the  Rule  Regarding  Hearsay. 

335.  Imminency  of  Death  must  be  Apparent. 

336.  Infirmities  of  this  Evidence  Outlined. 

337.  Accused  may  Show    Want  of  Belief  that  Death   is   at 

Hand. 

338.  Matters  of  Mere  Opinion  are  Inadmissible. 

339.  Narratives  of  Past  Occurrences  are  Inadmissible. 

340.  Impeaching  Character  of  Declarant. 

341.  Illustrations  of  Extreme  Rulings. 

§  330.  Characteristics  and  Scope  of.— Upon  well  reasoned 
grounds  of  expediency  dying  declarations  are  admissible  in 
criminal  prosecutions,  where  manslaughter  is  the  gravaman  of  the 
crime  alleged.  This  species  of  evidence  is  obviously  liable  to 
great  abuse  and  should  be  received  with  great  caution  and  onlv 
when  a  proper  introduction  entitles  it  to  be  received.  The  wit- 
ness whose  testimony  is  cast  upon  the  record  is  beyond  the  reach 
of  cross-examination — all  opportunity  for  investigating  the  ques- 
tion of  malice,  enmity,  positive  identification  is  lost  forever,  and 
the  accused  whose  tenure  of  life  is  hanging  in  the  balance,  has  to 
contend  with  the  additional  disadvantage  that  a  just  indignation 
aroused  in  the  minds  of  the  triers  by  the  mere  recital  of  a 
hideous  crime.  Evidence  of  this  character  is  universally  admitted 
however  on  the  ground  of  necessity  and  in  order  to  prevent  the 
entire  frustation  of  justice,  to  impart  competency  to  this  evidence 
it  must  clearly  appear  that  the  declarant  was  conscious  of  the 
imminency  of  death — believed  himself  to  lie  beyond  the  prob- 
abilities of  recovery,  and  this  belief  must  be  evident  by  some 
word  or  act  of  a  conclusive  and  unmistakable  character.  This 
conviction  in  the  mind  of  the  declarant  that  death  is  surely 
approaching  is  generally  presumed  to  supply  all  of  the  impressive 

51^7 


528  LAW    OF    EVIDENCE    IN    CRIMINAL    CASKS. 

effects  of  a  duly  administered  oath,  as  it  has  been  argued,  no  man 
in  the  very  article  of  death,  will  deliberately  go  down  to  his  grave 
with  a  lie  upon  his  lips,  and  the  life  of  a  fellow  being  dependent 
upon  the  last  gasp  that  he  shall  utter.  The  plausibility  of  this 
reasoning  is  admitted,  but  it  is  a  well  authenticated  fact  in  criminal 
annals  that  countless  men  have  calmly  met  the  awful  solemnities 
of  death  in  an  attitude  of  utter  moral  indifference;  through  the 
combined  medium  of  resentment  and  mendacity  they  are  induced 
to  distort  and  falsify  their  statements  until  even  in  cases  where 
firm  belief  in  the  doctrine  of  future  retribution  has  been  clearly 
shown  the  most  flagrant  and  atrocious  falsehoods  have  been  de- 
liberately uttered.  In  determining,  therefore,  the  degree  of 
weight  that  should  characterize  this  species  of  evidence  consider- 
ation is  due,  first  to  the  mental  and  physical  equipment  of  the 
declarant  at  the  time  of  making  the  statement;  second  to  the 
character  and  capacity  of  the  communicating  medium,  and  here 
we  pause  to  interpolate  a  cautionary  suggestion  as  to  the  reliability 
of  the  reporters  of  the  dying  declaration.  Obviously  they  are 
beyond  the  fear  of  contradiction  and  to  divert  suspicion,  either 
from  themselves  or  others  of  their  kindred  they  are  frequently 
impelled  to  a  gross  perversion  of  the  truth. 

Notwithstanding  the  admitted  infirmities  we  have  outlined,  the 
necessities  of  the  case  must  and  do  prevail,  and  in  all  jurisdictions 
dying  declarations  are  admissible  in  evidence.  Primarily  the 
question  of  admission  is  one  of  law  for  the  court — the  presiding 
judge  must  decide  whether  upon  all  the  facts  elicited  the  prose- 
cution has  properly  paved  the  way  to  its  reception,  but  on  this 
being  fairly  shown  it  is  rarely  (although  sometimes)  reversible 
error  to  allow  the  declaration  in  evidence.  At  one  time  the  un- 
tenable position  was  maintained,  that  unless  the  declarant  was 
shown  to  have  accepted  the  doctrine  of  future  punishment  his 
declaration  should  be  excluded.  But  this  view  no  longer  domi- 
nates  and  our  courts  of  last  resort  have  quite  generally  receded 
from  the  position.  The  authorities  upon  this  subject  are  simply 
overwhelming,  and  in  the  following  citations  the  aim  has  been  to 
include  only  those  that  the  best  reflect  the  present  law.  Boyle 
v.  State,  J  05  Ind.  469,  55  Am.  Rep.  21S ;  Brotherton  v. 
People,  75  N.  V.  159;  Brown  v.  Com.  73  Pa.  321,  13  Am. 
Rep.  740;  Oliver  v.  State,  17  Ala.  587;  Campbell  v.  State, 
11    Ga.  353;  Statt    v.  Nash,  7  Iowa,  347;  People   v.  Johnson, 


DYING    DECLARATIONS.  529 

1  Park.  Crira.  Kep.  291;  People  v.  Zee,  17  Cal.  76;  Hill  v.  State, 
41  Ga.  484;  Scott  v.  People,  63  111.  508;  Watson  v.  State,  6S  Ind. 
54S;  Campbell  v.  State,  38  Ark.  498;  Hurd  v.  Peopfe,  25  Mich. 
405;  People  v.  Knapp,  26  Mich.  112;  Thompson  v.  £tafe,  11 
Tex.  App.  51;  People  v.  Ybarra,  17  Cal.  166;  Cleveland  v. 
Newson,  45  Mich.  62;  Donnelly  v.  £fote,  26  N.  J.  L.  463;  Kehoe 
■v.  Com.  85  Pa.  127;  State  v.  Oliver,  2  Houst.  585;  Jfffy  v.  6'tate, 
.55  Ala.  39;  State  v.  Scott,  12  La.  Ann.  274. 

§  331.  Admissible  only  when  Death  is  the  Subject  of  the 
Charge. — The  rule  is,  that  such  evidence  is  admissible  only  "when 
the  death  of  the  deceased  is  the  subject  of  the  charge,  and  the 
•circumstances  of  the  death  the  subject  of  the  dying  declarations." 
Rex  v.  Mead,  2  Barn.  &  C.  605,  and  note,'  State  v.  Cameron,  2 
Pinney,  495;  Miller  v.  State,  25  Wis.  388;  Beg.  v.  Rind,  8  Cox, 
C.  C.  300.  In  the  last  case  cited,  it  is  said  that  "  the  reception  of 
this  kind  of  evidence  is  clearly  an  anomalous  exception  in  the  law 
of  England,  which  ought  not  to  be  extended.'1  See  also  The  Sus- 
sex Peerage,  11  Clark  &  F.  108,  112. 

This  kind  of  evidence  is  not  regarded  with  favor.  The  remarks 
■of  Redtield,  J.,  in  State  v.  Howard,  32  Vt.  380,  are  mere  dicta. 
Physical  or  mental  weakness  consequent  upon  the  approach  of 
death,  a  desire  of  self-vindication,  or  a  disposition  to  impute  the 
responsibility  for  the  wrong  to  another,  as  well  as  the  fact  the 
declarations  are  made  in  the  absence  of  the  accused,  and  often  in 
response  to  leading  questions  and  direct  suggestions,  and  with  no 
opportunity  for  cross-examination;  all  these  considerations  conspire 
to  render  such  declarations  a  dangerous  kind  of  evidence.  The 
rule  of  evidence  is  of  common  law  origin,  and  applied  and  still 
applies  only  to  cases  of  felonious  homicide  at  common  law.  State 
v.  Dickinson,  41  Wis.  299.  We  fail  to  perceive  any  substantial 
reason  for  limiting  the  application  of  this  rule  to  cases  of  homi- 
cide at  common  law.  On  prosecution  of  indictments  for  procur- 
ing an  abortion,  dying;  declarations  should  be  admitted. 

A  dving  declaration  is  not  admissible  except  where  the  death 
of  the  deceased  is  the  subject  of  a  charge  of  homicide,  on  trial, 
and  the  circumstances  of  the  death  are  the  subject  of  the  declara- 
tion. Abbott,  Trial  Brief,  ^  56 -±,  citing  People  \.  Davis,  56  X. 
Y.  96;  State  v.  Harper,  '■'<:>  Ohio  St.  78,  35  Am.  Rep.  596;  Rail- 
ing v.  Com.  110  Pa.  1"".  32  Alb.  L.  d.  409,  overruling  Com. 
v.  Bruce,  16  Phila.  510;  contra,  Montgomery  v.  State,  80 
34 


530  LAW    OF    EVIDENCE    IN    CRIMINAL    CASES. 

Ind.  338.  And,  contrary  to  the  early  views  regarding  the  sub- 
ject, it  is  generally  considered  that  the  recitals  of  the  Federal 
Constitution  which  provide  that  the  accused  shall  be  confronted 
by  the  witnesses  against  him,  are  not  infringed  by  the  rules  of 
evidence  which  admit  the  declarations  of  a  person  in  extremis. 
Miller  v.  State,  25  Wis.  384;  Bobbins  v.  State,  8  Ohio  St.  131. 

The  rules  of  admission  are  fully  satisfied  if  it  can  be  shown  that 
the  declarant  is  conscious  of  the  fact  that  he  was  in  a  dying  con- 
dition; and  the  length  of  time  that  may  elapse  between  the 
declaration  and  actual  dissolution  is  of  no  consequence  as  regards 
the  admissibility  of  the  statement  made.  Com.  v.  Cooper,  5  Allen, 
495;  Jones  v.  State,  71  Ind.  C>6;  Swisher  v.  Com.  26  Graft.  963. 

Another  well  recognized  rule  requires  that  the  "  dying  declara- 
tions should  point  distinctly  to  the  cause  of  death,  and  to  the 
circumstances  producing  and  attending  it,  and  this  rule  is  one 
that  should  not  be  relaxed.  Declarations  at  the  best  are  uncer- 
tain evidence,  liable  to  be  misunderstood,  imperfectly  remembered, 
and  incorrectly  stated.  As  to  dying  declarations  there  can  be  no- 
cross-examination.  The  condition  of  the  declarant  in  his  ex- 
tremity is  often  unfavorable  to  clear  recollection,  and  to  the  giv- 
ing of  a  full  and  complete  account  of  all  the  particulars  which  it 
might  be  important  to  know.  Hence  all  vague  and  indefinite 
expressions,  all  language  that  does  not  distinctly  point  to  the  cause 
of  death  and  its  attending  circumstances,  but  requires  to  be  aided 
by  inference  or  supposition  in  order  to  establish  facts  tending  to 
criminate  the  respondent,  should  be  held  inadmissible."  State  v. 
Center,  35  Vt.  378;  State  v.  Baldwin,  79  Iowa,  714. 

The  English  rule,  as  formulated  by  Sir  James  Stephen  (Dig. 
art.  26)  is  couched  in  the  following  language :  "A  declaration 
made  by  the  declarant  as  to  the  cause  of  his  death,  or  as  t'o  any 
of  the  circumstances  of  the  transaction  which  resulted  in  his 
death,  is  deemed  to  be  relevant  only  in  trials  for  the  murder  or 
manslaughter  of  the  declarant;  and  only  when  the  declarant  is 
shown,  to  the  satisfaction  of  the  judge,  to  have  been  in  actual 
danger  of  death,  and  to  have  given  up  all  hope  of  recovery  at  the 
time  when  his  declaration  was  made.  Such  a  declaration  is  not 
irrelevant  merely  because  it  was  intended  to  be  made  as  a  depo- 
sition before  a  magistrate,  but  is  irregular." 

§  332.  Not  Competent  in  Cases  of  Abortion. — As  previ- 
ously noted,  dying  declarations  are  only  admissible  when  the  cir- 


DYING    DECLAKATIOXS.  531 

cumstances  of  the  death  are  the  subject  of  the  declaration  and  the 
death  the  subject  of  the  charge;  they  are  not  admissible  in  a  trial 
for  abortion,  even  though  death  has  ensued.  Railing  v.  Com. 
110  Pa.  100. 

It  is  equally  unquestioned  that  there  is  no  grade  of  homicide 
involved  in  the  crime  commonly  known  as  abortion.  The  death 
of  the  woman,  when  it  occurs,  is  a  necessary  ingredient  of  the 
offense,  and  the  death  is  in  part,  at  least,  the  subject  of  the  charge. 
In  one  sense  this  is  true.  But  the  question  is,  is  it  so  in  the  real 
sense  of  the  rule  which  controls  the  subject  \ 

The  above  paragraph  should  be  read  in  connection  with  the 
case  of  Montgomery  v.  State,  80  Ind.  338,  and  State  v.  Dickin- 
son, 41  "Wis.  299.  In  both  those  cases  death  resulted  from  an 
attempt  to  produce  an  abortion.  It  was  held  that  the  death  was 
the  subject  of  inquiry,  and  hence  that  it  was  a  case  for  the  admis- 
sion of  dying  declarations.  The  dying  declaration  was  that  "the 
operation  was  performed  for  the  purpose  of  producing-  an  abor- 
tion." It  was  held  that  this  declaration  should  have  been  excluded. 
It  was  said  :  "What  the  purpose  of  an  act  was  is  an  inference 
from  facts,  and  witnesses  must  state  the  facts,  and  not  their  con- 
clusions. A  witness  would  have  been  required  to  state  what  was 
said  and  done.  Facts  are  to  be  stated  by  witnesses;  inferences  to 
be  made  by  the  jury.  This  rule  should  be  applied  with  jealous 
care  to  dying  declarations.  As  the  accused  cannot  cross-examine 
there  are  no  means  of  toting  the  correctness  of  the  conclusion. 
It  may  be  entirely  without  any  foundation  in  fact.  But  we  need 
not  discuss  this  question,  for  it  is  well  settled  that  dying  declara- 
tions must  speak  to  facts  only,  and  not  to  mere  matters  of  opin- 
ion."    Boyle  v.  State,  105  Ind.  469,  55  Am.  Rep.  218. 

The  weight  of  authority  seems  to  be  quite  decidedly  against 
the  admissibility  of  this  grade  of  evidence  in  cases  of  abortion. 
Thus  in  Rex  v.  Hutchinson,  2  15am.  &  C.  608,  note  A.,  the  pris- 
oner was  indicted  fur  administering  savin  to  a  woman  pregnant 
but  not  quick  with  child,  with  intent  to  procure  abortion.  The 
woman  was  dead,  and  for  the  prosecution,  evidence  of  her  dying 
declaration  upon  the  subject  was  tendered.  The  court  rejected 
the  evidence,  observing  that  although  the  declaration  might  relate 
to  the  cause  of  the  death,  still  such  declaration.-  were  admissible  in 
those  cases  alone  where  the  death  of  the  party  was  the  subject  of 
the  inquiry.     In  Reg.  v.  Hind,  8  Cox,  C.  C.  300,  the  defendant 


532  LAW    OF    EVIDENCE    IN    CRIMINAL    CASES. 

was  indicted  for  using  instruments  upon  a  woman  with  intent  to 
produce  an  abortion,  in  consequence  of  which  she  died.  It  was 
held  that  her  dying  declarations  in  relation  to  the  offense  were 
inadmissible.  The  same  course  was  followed  in  the  state  of  New 
York  in  the  case  of  People  v.  Davis,  56  N".  Y.  95.  It  was  held 
that  the  dying  declaration  of  the  woman  were  incompetent  on  the 
general  ground  that  the  death  was  not  the  subject  of  the  charge. 
In  the  case  of  State  v.  Harper,  35  Ohio  St.  78,  35  Am.  Hep.  596, 
the  same  doctrine  was  held.  The  Chief  Justice  said  :  "  This 
was  an  indictment  for  unlawfully  using  an  instrument  with  the 
intent  of  producing  an  abortion,  and  not  an  indictment  for  homi- 
cide. State  v.  Barker,  28  Ohio  St.  583;  People  v.  Davis,  56 
N.  Y.  96.  The  death  was  not  the  subject  of  the  charge,  and  was 
alleged  only  as  a  consequence  of  the  illegal  act  charged,  which 
latter  was  the  only  subject  of  investigation.  Did  the  court  err  in 
rejecting  the  dying  declaration  in  proof  of  the  charge  ?  We 
think  not.  The  general  rule  is  that  dying  declarations  are  admis- 
sible only  when  the  death  of  the  declarant  is  the  subject  of  the 
charge,  and  the  circumstances  of  the  death  are  the  subject  of  the 
dying  declaration.  Bex  v.  Mead,  2  Barn.  &  C.  605;  Bex  v. 
Lloyd,  1  Car.  &  P.  233,  1  Greenl.  Ev.  156." 

All  the  text-books  and  a  host  of  judicial  decisions  assert  that 
the  rule  of  admissibility  is  confined  to  cases  of  homicide. 

The  case  in  Indiana  appears  to  be  the  only  one  in  a  court  of 
last  resort  in  which  the  declarations  have  been  held  admissible. 
Bailing  v.  Com.  110  Pa,  100. 

§  333.  Admitted  on  Grounds  of  Necessity  alone. — Dying  dec- 
larations constitute  the  only  exception  to  the  rule,  that  in  all  cases 
the  accused  shall  have  the  opportunity  to  meet,  face  to  face,  and 
to  cross-examine,  adverse  witnesses.  Such  declarations  are  ad- 
mitted upon  the  single  ground  of  necessity.  The  necessity  rests 
primarily  and  principally  upon  the  presumption,  that  in  a  major- 
ity of  cases,  there  will  be  no  equally  satisfactory  proof  of  the  same 
fact.  This  presumption,  and  the  probability  of  the  crime  going 
unpunished,  are  the  chief  grounds  of  this  exception  in  the  law  of 
evidence.  It  has  been  well  said  by  a  learned  judge,  that  the 
great  reasons  why  dying  declarations  should  not  be  received  gen- 
erally, as  evidence,  in  all  cases  where  the  facts  involved  may 
thereafter  come  in  question,  seems  to  be,  that  it  wants  one  of  the 
most  important  and  indispensable  elements  of  testimony,  that  of 


DYING    DECLARATIONS.  533 

an  opportunity  for  cross-examination  by  the  party  against  whom 
it  is  offered.  1  Greenl.  Ev.  §  156,  note  A.  See  also  JSTelms  v. 
State,  13  Smedes.  &  M.  500,  53  Am.  Dec.  94;  Boyle  v.  State,  105 
Ind.  469,  55  Am.  Kep.  218. 

The  general  rule  is  that  matters  contained  in  a  dying  declara- 
tion are  not  competent  unless  they  would  be  admissible  if  they 
came  from  the  lips  of  a  living  witness.  Montgomery  v.  State,  80 
Ind.  338;  Binns  v.  State,  46  Ind.  311. 

In  the  case  of  Leiber  v.  Com.  9  Bush,  11,  it  was  said :  "The 
admission  of  dying  declarations  as  evidence,  being  in  derogation 
of  the  general  rule  which  subjects  the  testimony  of  witnesses  as 
ordinarily  received  to  the  two  important  'tests  of  truth,'  an  oath 
and  a  cross-examination,  it  is  obvious  that  such  evidence  should 
be  admitted  only  upon  the  grounds  of  necessity  and  public  policy, 
and  should  be  restricted  to  the  act  of  killing,  and  the  circumstances 
immediately  attending  it  and  forming  a  part  of  the  res  gesUt\" 

In  the  case  of  Montgomery  v.  State,  supra,  the  court  quoted 
with  approval  the  following  from  Mr.  Starkie:  "But  so  jealous 
is  the  law  of  any  deviation  from  the  general  rule,  that  it  confines 
the  exception  to  the  necessity  of  the  case,  and  only  renders  such 
declarations  admissible  when  they  relate  to  the  cause  of  death,  and 
are  tendered  on  a  criminal  charge  respecting  it." 

§  334.  An  Exception  to  the  Rule  Regarding  Hearsay. — 
It  is  well  settled  that  dying  declarations  can  be  received  only  on 
the  trial  of  an  indictment  for  homicide.  Wilson  v.  Boerem,  15 
Johns.  287;  People  v.  Davis,  56  N.  Y.  95.  Such  evidence  is 
received  as  an  exception  to  the  general  rule,  that  hearsay  evidence 
is  not  admissible  only  upon  the  principle  which  protects  human 
life  by  punishing  those  who  commit  homicide.  Such  crime  is 
often  committed  when  none  but  the  victim  and  his  assailant  are 
present,  and  his  declarations  when  in  extremis — conscious  that  he 
is  about  to  die — are  received  to  prevent  a  failure  of  justice.  1 
Greenl.  Ev.  §§  156,  225,  and  cases  cited.  Not  so  in  a  civil  case. 
Waldele  v.  New  York  Gut.  d-  If.  R.  E.  Co.  19   Hun,  69. 

It  is  vain  to  attempt  to  disguise  the  infirmities  and  imperfec- 
tions  of  the  human  mind,  and  its  susceptibility  to  false  impres- 
sions, under  circumstances  touching  the  heart  and  exciting  the 
sympathies;  and  the  law  has  wisely,  in  case  of  dying  declarations, 
required  all  the  guaranties  of  truth  the  nature  of  the  case  admits 
of.     Starkey  v.  People,  17  111.  20. 


534  LA.W    OF    EVIDENCE    IX    CRIMINAL    CASES. 

135.  Imminency  of  Death  must  be  Apparent.— In  order 
to  render  the  statements  of  a  person  admissible  as  dying  declara- 
tion^ such  persons  need  not  in  express  words  declare  that  he 
knows  he  is  about  t<»  die,  or  to  make  use  of  equivalent  language. 
('"///.  \.  Matthews,  89  Kv.  287. 

Dying  declarations  are  limited  in  their  scope  to  the  act  which 
cans.-  the  .loath,  and  the  attendant  circumstances,  or  res  gestce. 
It  i>  essential  to  their  admissibility  that,  at  the  time  when  they 
were  made,  the  declarant  should  have  been  in  actual  danger  of 
death,  that  he  should  then  have  a  full  apprehension  of  his  danger 
and  that  death  has  ensued.  1  Taylor.  Kv.  §  718.  "It  is  the 
impression  of  impending  death  and  not  the  rapid  succession  of 
death  in  point  of  tart,  which  renders  the  testimony  admissible." 
1  Taylor,  Kv.  §  718;  Reynolds  v.  State,  68  Ala.  502;  Hussey  v. 
.  ^7  Ala.  L21;  Pulliam  v.  State,  88  Ala.  1;  Whart.  Crim. 
Kv.  .;,•  282,  28-4;  3  Brickell,  Ala.  Dig.  p.  226,  §§  6tto,  et  seq.; 
Clark's  Manual.  §§  538,  et  seq. 

They  are  only  admitted  when  it  is  shown  that  the  party  making 
them  was  in  extn  mis  at  the  time  and  when  all  hope  of  this  world 
had  passed;  when  every  motive  to  falsehood  is  supposed  to  be 
silenced  and  the  mind  is  induced  by  the  most  powerful  considera- 
tion- to  speak  tin'  truth.  "A  situation  so  solemn  and  so  awful  is 
considered  by  the  law  as  creating  an  obligation  equal  to  that 
which  is  imposed  by  a  positive  oath  in  a  court  of  justice."  Rex 
v.  Woodcock,  '1  Leach,  C.  C.  500;  State  v.  Graves,  IS  Colo. . 

The  doctrine  was  declared  and  confined  with  succinct  complete- 
.  in  the  carefully  considered  case  of  Reg.  v.  Jenkins,  L.  R.  1 
C.  C.  191.  In  the  following  quotation,  the  Chief  Baron  says  : 
'•The  question  is  whether  this  declaration,  as  it  now  stands,  was 
admissible  in  evidence.  The  result  of  the  decisions  is  that  there 
must  be  an  unqualified  belief  in  the  nearness  of  death;  a  belief, 
without  hope,  that  the  declarant  is  about  to  die.  If  we  look  at 
reported  cases,  and  at  the  language  of  learned  judges,  we  find 
that  one  has  used  the  expression,  'Every  hope  of  this  world  gone;' 
another,  -Settled,  hopeless  expectation  of  death;'  another,  'Any 
hope  of  recovery,  however  slight,  renders  the  evidence  of  such 
declarations  inadmissible.'  We,  as  judges,  must  be  perfectly  sat- 
isfied, beyond  any  reasonable  doubt,  that  there  was  no  hope  of 
avoiding  death:  and  it  is  not  unimportant  to  observe  that  the 
burden   of  proving  the  facts  that  render  the  declaration  admissi- 


DYING    DECLARATIONS.  535 

ble  is  upon  the  prosecution."  Peak  v.  State,  50  N.  J.  L.  179,  10 
€rira.  L.  Mag.  528. 

§  336.  Infirmities  of  this  Evidence  Outlined.— The  dying 
man  is  not  allowed  to  make  his  statements  until  those  about  him 
think  that  he  is  near  the  end,  and  he  sees,  or  thinks  he  sees,  the 
shadows  of  death  settling  about  him.  Under  such  circumstances, 
and  at  such  a  moment,  if  he  is  a  believer  in  personal  responsil  >il- 
ity  and  a  future  state,  the  mind  will  be  centered  upon  and  more 
concerned  about  that  near  future  than  about  the  things  that  are 
receding  from  view.  And  hence  statements  made  under  such 
circumstances,  as  to  how  the  injury  was  received,  etc.,  come  with 
that  infirmity  that  always  attends  inattention.  Especially  will 
this  be  so  if  those  statements  embody  what  must  have  been  the 
result  of  a  process  of  reasoning,  as  an  inference,  conclusion  or 
opinion.  It  often  happens,  too,  that  in  such  an  extremity  the 
mind  is  not  in  its  full  vigor.  The  memory  may  have  been  con. 
fused  and  the  reason  blunted  from  physical  suffering  or  mental 
anxiety.  In  such  a  condition  the  mind  yields  ready  assent  to  what 
may  be  suggested,  and  the  person  states  as  a  fact  what  is  in  truth 
a  conclusion  or  an  opinion,  which  would  clearly  appear  to  be 
erroneous,  were  the  facts  stated  upon  which  they  are  based.  And 
if  facts  are  stated,  it  may  be  that  but  a  part  are  stated,  the  most 
important  being  omitted.  It  has  happened  that  a  dying  declara- 
tion made  one  day  is  contradicted  by  a  different  statement  upon  a 
subsequent  day.     Moore  v.  State,  12  Ala.  761,  16  Am.  Dec.  276. 

"I  have  said  this  much  in  order  to  show  how  important  and 
necessary  it  is  to  exercise  great  caution  in  the  admission  of  dying 
declarations  in  evidence  against  the  accused,  who  has  no  oppor- 
tunity for  a  cross-examination."  Boyle  v.  State,  105  Ind.  469,  55 
Am.  Kep.  218.  They  should  not  be  received  at  all  where  other 
evidence  is  attainable,  and  when  the  fact  of  killing  is  virtually 
admitted  by  the  line  of  defense  adopted,  it  is  unnecessary  to  prove 
the  declarations  of  the  deceased.     Collins  v.  Com.  12  13ush,  271. 

Mr.  Roscoe  says:  "Such  consideration^  show  the  necessity  of 
caution  in  receiving  impressions  from  accounts  given  by  persons 
in  a  dying  state;  especially  when  it  is  considered,  that  they  (•an 
not  be  subjected  to  the  power  of  cross-examination,  a  power  quite 
as  necessary  for  securing  the  truth  as  the  religious  obligation  of 
an  oath  can  be.  The  security,  also,  which  courts  of  justice  have 
in  ordinary  cases  for  enforcing  truth,  by  the  terror  of  punishment 


530  LAW    OF    EVIDENCE    IN    CRIMINAL    CASES. 

and  the  penalties  of  perjury  eannot  exist  in  this  case.  Roscoe, 
Crim.  Ev.  35. 

In  the  case  of  Shaw  v.  People,  3  Hun,  272,  it  was  said:  "It  is 
even  more  important  to  exclude  an  opinion,  declared  in  articulo 
mortis,  than  in  an  ordinary  case,  where  the  witness  may  be  sub- 
jected to  a  cross-examination,  etc." 

?;  337.  Accused  may  Show  Want  of  Belief  that  Death  is  at 
Hand. — In  a  criminal  prosecution  the  accused  has  the  right  to 
object  to  the  introduction  of  a  dying  declaration,  on  the  ground 
that  when  he  made  it  the  declarant  did  not  believe  that  he  was 
about  to  die.  In  support  of  his  objection  it  is  competent  for  the 
accused  to  introduce  testimony  tending  to  show  that  when  the 
declaration  was  made  the  declarant  was  not  under  the  sense  of  an 
impending  dissolution,  but  that  he  had  hopes  of  recovery.  State 
v.  Molisse,  36  La.  Ann.  920. 

§  33S.  Matters  of  Mere  Opinion  are  Inadmissible. — blatters 
of  mere  opinion  are  inadmissible.  Where  the  declarant  merely 
states  his  opinion  as  to  the  cause  of  an  injury,  and  such  state- 
ment would  not  be  received  were  the  declarant  to  be  sworn 
as  a  witness,  it  is  equally  inadmissible  as  a  declaration  in  articulo 
mortis.  In  such  cases  the  familiar  rule  obtains  the  ascendency  that 
the  witness  must  testify  to  facts  and  not  emit  mere  opinion. 
Bmns  v.  Stab .40  Ind.  311;  Wroe  v.  State,  20  Ohio  St.  460;  Whit- 
ley v.  State,  38  Ga.  50. 

The  introduction  of  testimony  of  this  nature  must  very  much 
he  confided  to  the  discretion  of  the  judge,  who  has  become  famil- 
iar with  all  the  antecedents  in  the  conduct  of  the  cause.  Com.  v. 
M'PiJce,  :;  Cush.  184,  50  Am.  Dec.  727;  Donnelly  v.  State,  26 
X.  J.  L.  601. 

One  feature  of  this  peculiar  grade  of  evidence  must  be  clearly 
outlined.  The  nisi  prius  courts  upon  which  ordinarily  involved, 
in  the  tirst  instance,  the  trial  of  those  cases  which  involve  ques- 
tions  as  to  the  admission  of  dying  declarations,  are  frequently  mis- 
led by  the  conflict  in  adjudication  and  the  plausibility  of  argument 
into  the  admission  of  evidence  that  represents  a  conclusion  or 
opinion  of  the  declarant.  Decisions  have  been  found  which 
apparently  support  the  contention  that  such  evidence  is  admissible. 
Wroi  v.  Stati .  L" '  ( )hi< ,  St.  460;  Roberts  v.  State,  5  Tex.  App.  141; 
J'"!l  ■  ■  61    Miss.  101;  Rex  v.  Scaife,  1  Mood.  &  K.  551; 

People  v.  Abbott,  4  West  Coast.  Kep.  132;  State  v.  Nettlebushy 


DYING    DECLARATIONS.  53T 

20  Iowa,  257;  Brotherton  v.  People,  75  N.  Y.  159;  Whart.  Criin. 
Ev.  §  294. 

Declarations  of  the  deceased,  made  when  in  extremis,  which  are 
not  statements  of  fact  which  a  living  witness  would  have  been 
permitted  to  testify  to,  but  are  merely  expressions  of  belief  and 
suspicions,  are  not  competent  evidence.     People  v.  Shaw,  63  N 
Y.  36. 

In  the  case  of  Rex  v.  Scaife,  1  Mood.  &  R.  551,  the  declaration 
was  :  "I  don't  think  he  would  have  struck  me  if  I  had  not  pro- 
voked him."  Coleridge,  J.,  hesitated,  but  finally  admitted  the 
declaration  upon  the  ground  that  it  might  have  an  influence  on 
the  amount  of  punishment.  There  was  no  discussion  at  all  as  to 
whether  or  not  the  declaration  involved  a  conclusion.  It  will  be 
observed  that  the  declaration  did  not  involve  the  one  and  vital 
question  in  the  case,  and  that  it  was  in  favor  of,  and  not  against, 
the  prisoner.  The  prisoner  was  not  endangered  by  the  want  of 
an  opportunity  to  cross-examine  the  dying  witness,  because  the 
declaration  was  in  his  favor.  In  speaking  of  this  declaration,  the 
Kentucky  court  of  appeals,  in  the  case  of  Haney  v.  Com.  (Ky.) 
5  Crim.  L.  Mag.  17.  said,  that  it  was  the  expression  of  an  opinion? 
but  was  admissible  because  in  favor  of  the  accused.  The  Ohio 
court  cites  it  as  being  the  statement  of  a  fact.  It  was  held  in  the 
Kentucky  case  above,  as  stated  in  the  syllabus,  that  "the  general 
rule  that  declarations  of  the  deceased  are  admissible  only  when 
they  relate  to  facts  and  not  to  mere  matters  of  opinion,  is  subject 
to  the  exception  that  declarations  of  the  mere  opinion  of  deceased 
are  admissible  when  they  are  favorable  to  the  accused,  and  explain 
the  conduct  or  motives  of  the  deceased."  In  speaking  of  such 
declarations  in  favor  of  the  accused,  the  court  said,  amongst  other 
things,  "  The  admission  of  such  declarations  can  do  no  harm. 
Frauds  cannot  be  practiced  under  cover  of  the  rule.  And  there 
is  not  so  much  danger  of  misconception  or  perjury  as  where  the 
declarant  speaks  from  hostile  feelings,  surrounded  by  sympathiz- 
ing friends,  ready  to  construe  his  words  as  favorable  to  their  own 
views,  as  may  reasonably  be  done." 

Much  of  the  foregoing  discussion  is  embodied  in  the  dissenting 
opinion  of  Mr.  Justice  Zollars  of  the  Indiana  supreme  court  of 
judicature  in  the  case  of  Boyle  v.  State,  L05  Ind.  469,  55  Am. 
Rep.  218,  decided  in  1885.  It  is  seldom,  indeed,  that  any  opinion 
is  so  critical  in  its   analysis,  so  exhaustive  in   its  citation,  or  so 


53$  LA.W    OP'    EVIDENCE    IN    CRIMINAL    CA.SES. 

Logical  in  its  conclusions.  Any  discussion  of  this  subject  which 
omits  a  careful  consideration  of  this  case,  must  be  regarded  as 
grossly  imperfect.  The  principal  opinion  was  delivered  by  Mr. 
Justice  Elliott.  It  is  a  very  ingenious  argument  in  favor  of  the 
prevailing  view.  But  while  perfectly  aware  that  my  function  as 
a  text-writer  will  not  tolerate  the  least  attempt  to  make  a  law,  I 
submit  the  dissenting  opinion  of  this  exceedingly  able  court  con- 
tains the  >tatcnicnt  of  the  better  view  both  upon  principle  and 
authority. 

§  339.  Narratives  of  Past  Occurrences  are  Inadmissible. — 
The  decision  in  People  v.  Fong  Ah  Sing  (Cal.)  5  Crim.  L.  Mag. 
64,  is  that  it  is  improper  to  prevent  narratives  of  previous  occur- 
rences to  be  given  in  a  dying  declaration.  What  was  there  said 
by  the  court:  "Dying  declarations  are  restricted  to  the  act  of 
killing  and  to  the  circumstances  immediately  attending  it,  and 
torn  ling  a  part  of  the  res  gestae.  When  they  relate  to  former  and 
distinct  transactions,  they  do  not  come  within  the  principle  or 
necessity  on  which  such  declarations  are  received."  The  general 
rule  is  that  matters  contained  in  a  dying  declaration  are  not  com- 
petent unless  they  would  be  admissible  if  the}-  came  from  the 
lips  of  a  living  witness,  was  declared  and  approved.  Montgomery 
v.  State,  80  Ind.  338;  Binns  v.  State,  46  Ind.  311.  The  name  of 
the  person  who  committed  the  homicide,  as  well  as  the  name  of 
his  victim,  may  be  proved  by  the  dying  declarations  of  the  latter. 
Sylvester  v.  State,  71  Ala.  17;  State  v.  Johnson,  76  Mo.  121; 
List<  r  v.  Stati ,  L  Tex.  App.  739;  Boyle  v.  State,  105  Ind.  469,  55 
Am.  Rep.  218. 

§  340.  Impeaching  Character  of  Declarant. — The  eminence 
of  the  late  Dr.  Wharton  in  the  entire  domain  of  criminal  law, 
practice  and  evidence  has  been  cordially  acknowledged  and  by 
none  with  a  deeper  feeling  of  obligation  than  the  present  writer; 
but  at  section  77-"'  of  his  well  known  treatise  on  the  Law  of  Homi- 
cide 1  find  the  following:  "  It  seems  that  evidence  is  admissible, 
on  the  part  of  the  defense,  to  impeach  the  character  of  the  de- 
ceased  for  truth,  he  standing  on  the  same  footing  as  a  witness 
'■ailed  into  court  and  then  examined:  and  in  one  case,  where  the 
dying  declarations  of  the  deceased  were  admitted  to  show  that 
the  defendant  with  intent  to  produce  on  her  an  abortion,  had 
administered  to  her  oil  of  tansy,  which  was  the  cause  of  her  death, 
the  defendant  was  allowed  to  show  that  the  deceased  was  con- 


DYING    DECLARATIONS.  539 

eidered  a  woman  of  loose  character  and  light  reputation.  So  it 
may  be  shown  that  the  declarant  was  insane,  or  was  an  unbeliever, 
•or  was  in  the  constant  habit  of  making  mistakes  as  to  the  identity 
of  others."  Neslit  v.  State,  43  Ga.  23S;  Donnelly  v.  State,  26 
K  J.  L.  496;  People  v.  Knapp,  1  Ed  in.  Sel.  Cas.  177;  Carter  v. 
People,  2  Hill,  317;  Com.  v.  Cooper,  5  Allen,  495,  81  Am.  Dec. 
'762. 

If  this  be  established  law,  it  seems  monstrous  perversion  of 
natural  justice.  It  is  not  our  province  to  quarrel  with  the  courts; 
but  there  is  something  inhuman  in  the  theory  that  a  person  who 
has  been  foully  murdered,  and  who  in  the  solemnities  of  a  dying 
state  narrates  the  circumstances  of  the  assault  that  must  result  in 
death  should  have  his  character  for  truth  and  veracity  impeached  by 
those  who  from  motives  of  malignity  or  self  interest  have  some- 
thing to  gain  through  the  smearing  of  his  reputation.  After  the 
grave  has  inexorably  interposed  a  bar  to  all  challenge  or  contra- 
diction— to  any  attempt  to  show  previous  malice,  enmity  or  hate 
for  a  court  of  justice  to  allow  irresponsible  and  unfriendly  criticism 
to  frustrate  the  demands  of  justice,  is  an  attitude  of  hostility  to- 
ward every  instinct  of  right  and  impartiality.  Such  a  rule  of 
■evidence,  if  tolerated  and  indulged,  can  only  result  in  the  utter 
miscarriage  of  justice,  and  the  entire  immunity  of  that  dangerous 
criminal  class  who  have  graduated  from  elementary  crime,  and 
through  all  the  gradations  of  bestial  criminality  have  finally 
reached  the  climacteric  infamy  of  murder. 

£  311.  Illustrations  of  Extreme  Rulings. — Upon  this  topic 
we  find  an  instructive  reading  from  the  opinion  of  Chief  Justice 
Shaw,  in  Com.  v.  Casey,  11  Gush.  417,  59  Am.  Dec.  150.  The 
prosecution  was  for  murder.  The  evidence  was  introduced  for 
the  purpose  of  fastening  the  crime  upon  a  certain  person.  The 
victim  was  unable  to  articulate;  but  was  asked  to  squeeze  the 
hand  of  her  interrogator  if  it  was  the  defendant  who  made  the 
murderous  assault.  The  victim  thereupon  took  her  hand  from 
under  the  bed-clothes,  seized  the  hand  of  her  questioner,  and 
squeezed  it  for  about  half  a  minute.  At  two  other  times  she  was 
questioned  in  the  same  way  and  responded  in  like  manner.  This 
evidence  was  admitted  against  the  objection  of  the  defendant. 
Commenting  upon  the  admissibility,  his  honor  says: 

"We  appreciate  the  importance  of  the  question  offered  for  our 
decision.     Where  a  person  has  been  injured    in  such  a  way  that 


540  LAW    OF    EVIDENCE    IN    CRIMINAL    CASES. 

his  testimony  cannot  be  had  in  the  customary  way,  the  usual  and 
ordinary  rules  of  evidence;  must  from  the  necessity  of  the  case  be 
departed  from.  The  point  first  to  be  established  is,  that  the  per- 
son whose  dying  declarations  are  sought  to  be  admitted  was  con- 
scious that  he  was  near  his  end  at  the  time  of  making  them;  for 
this  is  supposed  to  create  a  solemnity  equivalent  to  an  oath.  If 
this  fact  be  satisfactorily  established,  and  if  the  declarations  are 
made  freely  and  voluntarily,  and  without  coercion  they  may  be 
admitted  as  competent  evidence. 

A  New  York  court  of  oyer  and  terminer  has  held  with  doubt- 
ful propriety  that  dying  declarations  should  not  be  ignored  in  any 
case,  but  on  the  contrary  should  be  admitted  even  where  there  is- 
a  bare  possibility  of  the  declarant's  recovery.  People  v.  Ander- 
sori,  2  Wheel.  Crim.  Cas.  398.  Mr.  "Wharton  says  such  a  relaxa- 
tion of  the  rule  is  perilous;  and  though  we  have  no  right  to  rule- 
out  such  evidence  because  we  conjecture  that  the  deceased  may 
have  at  certain  moments  nourished  a  transient  hope,  yet,  so  far  as 
the  construction  of  the  deceased's  own  utterances  are  concerned, 
it  is  best  to  take  the  rule  without  qualification,  and  to  hold  that 
the  expression  of  a  hope  excludes.  Jackson,  v.  Com.  19  Gratt.  656; 
State  v.  Moody,  3  N.  C.  31,  2  Am.  Dec.  GIG;  Whart.  Horn.  §  754. 

The  same  distinguished  author  in  a  subsequent  section  employs 
the  following  language :  "If  it  be  shown  that  the  declarations 
were  uttered  by  the  dying  man,  to  be  connected  with  and  qualified 
by  other  statements  and  with  them  to  form  an  entire  complete 
narrative,  and  before  the  purposed  disclosure  was  fully  made, 
they  had  been  interrupted  and  the  narrative  left  unfinished;  such 
partial  declarations,  it  is  said,  would  not  be  competent  evidence. 
But  if  it  appear  that  the  deceased  stated  all  that  he  desired  to 
say.  the  fact  that  the  narrative  of  what  occurred  is  not  complete 
does  not  render  the  declaration  incompetent."  Vass  v.  Com.  3 
Leigh,  786,  24  Am.  Dec.  695;  State  v.  JSfetUebush,  20  Iowa,  257; 
State  v.  Patter-sun.  45  Vt.  308,  12  Am.  Rep.  200;  Whart.  Horn. 
§  770. 

One  of  the  most  important  criminal  causes  ever  tried  in  the 
state  of  New  Jersey  is  that  of  Donnelly  v.  State,  26  N.  J.  L.  4G3. 
The  opinion  concurred  in  by  the  full  bench  was  written  by  the 
distinguished  ( 'hief  Justice  Green:  and  affords  a  singularly  logical 
presentation  of  this  entire  subject  of  dying  declarations.  The 
commonwealth  was  represented  by  the  attorney  general  assisted 


DYING    DECLARATIONS.  541 

by  Joel  Parker;  and  among  the  counsel  for  the  prisoner  were 
Messrs.  Bradley,  Pennington  and  Scott.  The  case  was  decided 
in  1857  and  has  received  the  repeated  indorsement  of  the  Ameri- 
can judiciary  as  embodying  sound  principles  of  law  relating  to 
the  admissibility  of  evidence.  The  main  object  of  the  following 
extended  extract  from  the  opinion  in  that  case,  is  to  show  the 
extreme  anxiety  of  our  courts  in  the  effort  to  detect  and  punish  a 
hideous  crime  to  admit  every  species  of  evidence  that  sustains  any 
legitimate  affinities  to  the  allegations  of  the  indictment.  In  the 
case  referred  to,  the  court  doubtless  went  to  the  extreme  limit  of 
prudence  in  inferring  the  consciousness  on  the  part  of  the  declar- 
ant of  impending  death,  in  order  to  admit  the  statements  made  in 
evidence  against  the  accused.  We  have  already  adverted  to  the 
very  liberal  position  of  New  York  oyer  and  terminer,  and  the 
Donnelly  case  is  even  more  advanced  as  evincing  the  deliberate 
purpose  of  the  court  to  admit  any  grade  of  evidence  that  can 
assist  in  even  a  slight  degree  in  establishing  the  motive,  manner 
and  perpetrator  of  a  crime.  The  opinion  of  the  Donnelly  case 
referred  to  proceeds  as  follows  : 

"It  is  suggested,  that  whether  the  person  making  the  declara- 
tion was  or  was  not  under  a  sense  of  impending  death,  was  a  mere 
question  of  fact,  to  be  decided  by  the  judge;  and  that,  being  a 
mere  question  of  fact,  it  is  not  the  subject-matter  of  a  writ  of 
error,  and  cannot  be  drawn  in  question  in  this  court.  The  answer 
to  the  objection  is,  that  the  decision  involves  a  mingled  question 
of  law  and  of  fact.  What  constitutes  a  dying  declaration  is  a 
question  of  law.  Whether,  therefore,  the  circumstances  shown 
upon  the  trial  evince  that  the  statement  offered  is  what  the  law 
denominates  a  dying  deelaration,  is  a  question  of  law,  and  the 
proper  subject  of  review  upon  a  writ  of  error.  In  dealing  with 
this  question,  the  court  here  will  give  to  each  fact  sworn  to  its 
appropriate  effect,  without  questioning  the  credibility  of  the  tes. 
timony  or  the  truth  of  the  facts  put  in  evidence.  Upon  the  mere 
credibility  of  the  testimony,  upon  this  preliminary  issue,  the  de- 
cision of  the  court  below  must  be  regarded  as  final. 

"Evidence  had  been  offered  tending  to  show  that  the  deceased 
died  from  a  wound  inflicted  with  a  sharp  instrument  on  the  left 
side  of  the  neck  or  throat,  six  inches  in  depth,  perforating  the 
oesophagus,  severing  the  jugular  vein  and  a  branch  of  the  carotid 
artery,  and  inflicting  other  internal  injury;  that  the  wound  in  its 


542  LAW    OF    EVIDENCE    IN    CRIMINAL    CASES. 

nature  was  very  dangerous,  and  the  possibility  of  recovery  from 
it  very  doubtful;  that  in  point  of  fact  the  deceased  died  from  the 
effect  of  the  wound  soon  after  its  infliction;  that  after  receiving 
the  injury,  he  had  raised  the  cry  of  murder,  and  had  followed  the 
murderer  through  an  adjoining  room  into  the  hall,  bleeding  very 
profusely;  that  a  few  steps  from  the  door  of  the  room,  he  had 
fallen,  and  had  there  lost  a  large  quantity  of  blood;  that  he  thence 
entered  the  room  adjoining  his  own  and  had  laid  himself  upon 
the  bed,  from  which  he  never  rose;  that  Mr.  Smith,  the  first  per- 
son who  entered  the  room,  found  him  bleeding  very  profusely. 
The  wounded  man  threw  up  his  hands,  called  the  witness  by 
name,  and  repeated  that  he  had  been  stabbed;  that  he  had  been 
murdered;  that  his  throat  had  been  cut.  The  witness  then  stated 
'  I  asked  him  who  by;  he  said,  Donnelly,  your  book-keeper.' 
This  is  one  of  the  declarations  objected  to.  Upon  this  evidence 
alone,  excluding  all  the  testimony  regarding  the  condition  of  the 
deceased  from  this  moment  till  the  time  of  his  death,  was  not  the 
court  below  justified  in  admitting  this  statement  in  evidence  as  a 
dying  declaration?  The  facts  before  the  court  were,  that  the 
deceased  had  received  a  most  dangerous  wound,  from  which 
recovery  was  very  improbable,  and  from  which  in  fact  the  injured 
man  died  within  an  hour.  That  the  statement  was  voluntarily 
made,  immediately  after  the  injury,  to  the  first  person  that  he 
spoke  to  while  lying  upon  his  bed  weakened  by  loss  of  blood; 
that  in  fact  he  was  at  the  moment  bleeding  to  death.  Was  not 
that  statement  made  under  a  sense  of  impending  death  ?  Is  there 
any  evidence  to  warrant  the  belief,  that  at  that  time  or  at  any 
time  afterwards,  he  had  the  least  expectation  or  hope  of  recovery. 
It  is  not  necessary  that  ilu  party  injured  should  ■state,  at  the  time 
of  making  tht  declarations,  that  they  were  made  under  a  sense  of 
iding  death.  It  is  enough,  if  it  satisfactorily  appears  in 
any  mode,  that  they  were  made  under  that  sanction.  It  may  be 
directly  proved  by  the  express  language  of  the  declarant,  but  it 
may  also  be  inferred  from  his  evident  danger,  or  the  opinion  of 
his  attendants  stated  to  him,  or  from  his  conduct,  or  other  circum- 
stances of  the  case,  all  of  which  are  resorted  to  in  order  to  ascer- 
tain the  state  of  the  declarant's  mind  at  the  time  of  making  the 
declarations.  1  Greenl.  Ev.  §  15S;  1  East,  P.  C.  358;  Rex  v. 
Woodcock,  1  Leach,  C.  C.  500;  Hill  v.  Cum.  2  Graft.  594;  State 
v.  Freeman,\  Speer,  L.  57. 


DYING    DKCLAKATIONS.  543 

"Declarations  made  by  the  injured  party  immediately  after  re- 
ceiving the  injury  have  in  some  cases  been  received  as  competent 
evidence,  though  not  as  dying  declarations.  Rex  v.  Foster,  6 
Car.  &  P.  325;  Com.  v.  IP  Pike,  3  Cush.  181,  50  Am.  Dec.  727. 
In  the  latter  case  it  was  held  that  the  declaration  of  a  person  who 
is  wounded  and  bleeding,  that  the  defendant  had  stabbed  her. 
made  immediately  after  the  occurrence,  though  with  such  an  in- 
terval of  time  as  to  allow  her  to  go  from  her  own  room  up  stairs 
into  another  room,  is  admissible  in  evidence  after  her  death  as  a 
part  of  the  res  gestce" 

It  has  long  been  a  familiar  axiom  of  the  schools — "That  is  cer- 
tain which  can  be  rendered  certain;"  and  whenever  the  evidence 
discloses  the  presence  of  a  certain  apprehension  of  immediate 
death  in  the  mind  of  the  declarant,  although  there  is  no  express 
avowal  of  that  apprehension  or  belief  the  declaration  should  be 
admitted.  A  surgeon  of  great  experience  and  of  iron  nerve  and 
fortitude  is  fatally  wounded, — the  merest  inspection  of  his  injury 
reveals  the  impending  result.  In  the  nature  of  the  case  this  re- 
sult is  as  clear  to  the  apprehension  of  the  wounded  man  as  to  any 
of  his  attendants,  and  to  deny  his  dying  declaration  the  status  of 
legal  evidence  merely  because  he  has  failed  to  disclose  his  belief 
in  approaching  death  is  a  rank  prostitution  of  practical  methods 
in  the  prosecution  of  crime.  The  circumstances  of  each  particu- 
lar case  may  be  relied  upon  to  furnish  a  just  inference  as  to 
whether  the  victim  was  conscious  of  the  imminency  of  death. 
Anthony  v.  State,  Meigs,  265,  33  Am.  Dec.  143;  McDaniel  v. 
State,  8  Smedes  &  M.  401,  47  Am.  Dec.  93.  See  Essay  of  Clark 
Bell  before  the  Medico-Legal  Society  of  New  York,  1893. 


CHAPTER  XLIII. 
CIRCUMSTANTIAL  EVIDENCE. 

§  342.   Term  Defined. 

343.  Test  of  Sufficiency. 

344.  Theory  of  the  ''Connected  Chain"  Examined. 

345.  Direct  and  t  'ircumstantial  Evidence  Contrasted. 
34(i.    What  must  be  Proved  to  Warrant  a  Conviction  by. 

347.  Instructions  from  the  Court  Regarding  this  Grade  of 

Evidence. 

348.  Great  Latitude  Allowed  in  the  Reception  of. 

349.  Views  of  Eminent  Text-writers. 

350.  Review  of  the  Celebrated  Webster  Case — the  Harris  Case. 

351.  The  Maybrick  Case  Considered. 

352.  The  Stokes  Case  Considered. 

353.  Views  of  the  Texas  Supreme  Court. 

354.  Comparative  Weight  of  Direct  and  Circumstantial  Evi- 

dence: 

355.  Rules  of  Induction  Specially  Applicable  to  Circumstan- 

tial Evidence. 
35G.   The  Rule  in  Civil  Actions  Having  Criminal  Attributes. 

§  342.  Term  Defined. — Circumstantial  evidence  consists  in 
reasoning  from  tacts  which  are  known  or  proved,  to  establish  such 
as  arc  conjectured  to  exist;  but  the  process  is  fatally  vicious  if  the 
circumstances  from  which  we  seek  to  deduce  the  conclusion 
depends  upon  conjecture.  People  v.  Kennedy,  32  N.  Y.  141; 
Jenkins  v.  State,  62  Wis.  63;  1  Bishop,  Crim.  Proc.  §  1069.  In 
all  of  its  correlations  and  affinities  it  is  essentially  the  legal  mani- 
festation  of  the  inductive  process,  and  in  its  best  adaptations  to 
the  requirements  of  cither  a  criminal  or  a  civil  case,  induction 
inspires  its  best  efforts  and  suggests  its  best  conclusions.  This 
induction  of  which  we  speak,  has  been  defined  as,  "that  operation 
of  the  mind,  by  which  we  infer  that  what  we  know  to  be  true  in 
a  particular  case  or  cases,  will  be  true  in  all  cases  which  resemble 
the  former  in  certain  assignable  respects.  In  other  words,  induc- 
tion is  the  process  by  which  we  conclude  that  what  is  true  of  cer- 
tain individuals  of  a  class  is  true  of  the  whole  class,  or  that  what 

544 


CIRCUMSTANTIAL    EVIDENCE.  545 

is  true  at  certain  times  will  be  true  in  similar  circumstances  at  all 
times.  This  definition  excludes  from  the  meaning  of  the  term 
induction,  various  logical  operations,  to  which  it  is  not  usual  to 
apply  that  name.  Induction,  as  above  defined,  is  a  process  of 
inference;  it  proceeds  from  the  known  to  the  unknown;  and  any 
operation  involving  no  inference,  any  process  in  which  what  seems 
the  conclusion  is  no  wider  than  the  premises  from  which  it  is 
drawn,  does  not  fall  within  the  meaning  of  the  term."  Mills, 
Logic,  Ratiocinative  &  Inductive  (8th  ed.)  210. 

Evidence  is  defined  to  be  circumstantial  where  the  main  fact 
is  deduced  from  a  series  of  collateral  facts  by  a  process  of  reason- 
ing. Best.  Presumptions,  12,  216;  1  Greenl.  Ev.  §  13;  3  Bl.  Com. 
371;  1  Phil.  Ev.  598. 

This  grade  of  evidence  is  frequently  used  to  prove  an  offense, 
in  the  absence  of  positive  evidence  of  it,  and  it  may  be  satisfacr 
tory,  and  even  stronger  than  positive  evidence.  It  is  also  often 
used  when  there  is  direct  and  positive  evidence  of  the  commission 
of  a  crime  and  the  guilt  of  the  defendant,  in  order  to  make  a 
stronger  case  against  him.  And  it  is  quite  common  to  prove  cer. 
tain  ingredients  of  the  crime  by  the  one,  and  other  ingredients  by 
the  other  kind  of  evidence.  Thus  "in  larceny,  for  instance,  after 
proving  that  the  goods  were  taken  or  stolen,  proof  that  they  were 
found  in  the  possession  of  the  prisoner  shortly  afterwards,  and 
that  he  did  not  give  any  satisfactory  account  of  the  manner  in 
which  he  came  b}T  them,  is  deemed  good  presumptive  evidence  of 
the  prisoner  having  stolen  them;  and  if  to  this  be  added  evidence 
that  the  goods  when  found,  were  concealed  or  disguised,  or  the 
prisoner  when  charged  with  the  offense,  absconded,  it  will  very 
much  strengthen  the  presumption."     Archb.  Crim.  Pr.  &  PI.  135. 

It  usually  consists  of  various  independent  circumstances  which, 
connected  together,  may  show  that  a  crime  lias  been  committed, 
and  that  the  defendant  is  guilty.  Each  circumstance  may  be  sus- 
tained by  independent  proof,  or  the  testimony  of  different  parties 
and  the  value  of  the  evidence  may  largely  depend  upon  the  suffi- 
ciency of  the  proof  of  a  single  fact,  constituting  a  link  in  the 
whole  chain  of  evidence.  Sometimes,  however,  each  necessary 
link  in  the  chain  may  be  sustained  by  corroborative  facts  and  tes- 
timony; and  the  value  of  the  whole  may  depend  upon  the  amount 
and  value  of  the  testimony,  to  independent  fact,-.  McCann  v. 
State,  13  Smedes  cv.  M.  171.  See  also  Mason  v.  State,  42  Ala, 
35 


54:6  LAW    OF    EVIDENCE    IN    CRIMINAL    CASES. 

532;  Williams  v.  State,  41  Tex.  209;  Barnes  v.  State,  41  Tex.  342;. 
Riggs  v.  State,  6  Coldw.  517;  Clark  v.  People,  5  Thorap.  &  C. 
1 1  un.  520;  Woodford  v.  People,  5  Tliomp.  &  C.  589;  People 
v.  .]///<  /'.s,  2  Hun,  6. 

Circumstantial  evidence  is  proof  of  a  series  of  other  facts  than 
the  fact  in  issue,  which  Try  experience  have  been  found  so  associ- 
ated with  that  fact  that,  in  the  relation  of  cause  and  effect,  they 
lead  to  a  certain  and  satisfactory  conclusion;  as  when  footprints 
are  discovered  after  a  recent  snow,  it  is  certain  some  animated 
being  passed  over  the  snow  since  it  fell;  and  from  the  form  and 
number  of  the  footprints,  it  can  be  determined  with  equal  cer- 
tainty whether  they  are  those  of  a  man,  bird  or  quadruped.  Such 
evidence  is  founded  on  experience  and  observed  facts  and  coinci- 
dences, establishing  a  connection  between  the  known  and  proved 
tacts  and  the  facts  sought  to  be  proved.  Com.  v.  Webster,  5  Cush. 
310,  312,  52  Am.  Dec.  711.  See  also  People  v.  Cronin,  34  Cal. 
202,  203;  People  v.  Morrow,  60  Cal.  144. 

Presumptive  or  circumstantial  evidence  is  admissible  both  in 
civil  and  criminal  cases,  and  in  prosecutions  for  some  of  the  worst 
species  of  crimes,  is  often  the  most  satisfactory  and  convincing  that 
can  be  produced.  Walworth,  Chancellor,  in  People  v.  Videto,  1 
Park.  Crim.  Rep.  603.  In  the  abstract,  it  is  nearly,  if  not  quite 
as  strong  as  positive  evidence;  in  the  concrete,  it  may  be  much 
stronger.     Com.  v.  Harman,  4  Pa.  271-273. 

§  343.  Test  of  Sufficiency. — The  criterion  of  sufficiency  is 
this,  does  the  circumstantial  evidence  resorted  to,  establish  in  the 
minds  of  the  jury  a  sense  of  conviction,  to  the  exclusion  of  all 
mable  doubt?  The  convincing  effect  that  would  follow  from 
positive  testimony,  is  not  expected  to  flow  from  circumstantial 
evidence.  Banks  v.  State,  72  Ala.  522;  State  v.  Goldsborough, 
1  Houst,  Crim.  Rep.  302;  Jackson  v.  State,  9  Tex.  App.  114;  Faulk 
v.  State,  52  Ala.  415;  State  v.  Norwood,  74  N.  C.  247;  Bea  v. 
State,  8  Lea,  356;  Dean  v.  Cora.  32  Gratt.  912;  Walhrldge  v. 
State,  13  Neb.  236. 

§  344.  Theory  of  the  "Connected  Chain"'  Examined. — 
The  philosophy  of  circumstantial  evidence  is  this :  That  it  con- 
si.-ts  in  proving  the  many  independent  circumstances  by  different 
witnesses;  but  which,  if  they  are  proved,  and  if  they  form  one 
consistent  and  connected  chain  in  a  transaction,  they  are  apt  to 
convince  the  mind;  while,  if  they  are  not  true,  error  and  falsehood 


CIRCUMSTANTIAL    EVIDENCE.  547 

are  likely  to  be  detected,  so  that  no  person  shall  be  injured  there- 
by. There  are  certain  humane  rules  laid  down  in  the  law  in 
relation  to  circumstantial  evidence.  In  the  first  place,  if  there  is 
a  single  circumstance  proved  which  is  one  of  the  necessary  links 
in  the  chain  of  the  transaction  that  is  inconsistent  with  the  guilt 
of  the  accused,  no  matter  how  suspicious  the  other  circumstances 
may  be,  he  is  entitled  to  an  acquittal. 

Another  rule  is,  that  in  order  to  find  a  verdict  of  guilty  the 
circumstances  all  taken  together,  as  you  shall  find  them  proved, 
shall  sustain  no  other  reasonable  hypothesis  than  that  of  the  guilt 
of  the  accused  in  order  to  find  a  verdict  of  guilty. 

In  a  case  of  circumstantial  evidence,  the  jury  have  not  only  to 
determine  whether  the  witnesses  testified  truthfully  to  the  cir- 
cumstances, but  also  to  draw  a  natural  and  reasonable  inference 
from  the  circumstances  they  find  to  be  proved. 

It  is  always  an  exceedingly  satisfactory  circumstance  of  corrob- 
oration in  a  criminal  case,  when  in  connection  with  other  convin- 
cing proofs,  an  adequate  motive  for  the  crime  or  act  can  be 
assigned.  It  is  a  general  axiom  of  human  action,  that  all  persons 
act  from  motive,  and  it  is  always  a  satisfactory  circumstance  if  a 
jury  can  feel  that  it  is  proved  to  their  satisfaction  that  the  party 
had  a  motive,  a  strong,  impelling  motive,  for  the  act  which  he  is 
charged  with  doing.  But  it  is  not  essential  to  a  conviction  that  a 
motive  should  be  proved.  It  is  utterly  impossible  to  see  the  op- 
erations of  the  human  mind;  the  characters  and  instincts  and  in- 
tents of  persons  differ,  so  that  what  might  be  an  adequate  motive 
for  another,  for  a  certain  act,  and  hence  it  is  that  it  is  not  abso- 
lutely necessary  that  there  shall  be  a  motive  proved  in  order  to 
insure  a  conviction,  but  the  absence  of  any  probable  motive  is  a 
circumstance  always  to  be  considered  by  a  jury  in  favor  of  the 
accused.  Pratt,  J.,  in  People  v.  Rubenstein,  Kings  County  Over 
&  Terminer  (not  reported). 

'"It  is  a  rule  that  may  be  called  a  golden  rule  in  the  examination 
and  application  of  this  kind  of  evidence  which  we  call  circum- 
stantial, that  should  it  so  turn  out  that  every  fact  and  circumstance 
alleged  and  proved  to  exist  is  consistent  on  the  one  hand  with  the 
hypothesis  of  guilt,  and  on  the  other  hand  consistent,  reasonably 
and  fairly,  with  the  hypothesis  of  innocence,  then  those  circum- 
stances prove  nothing  at  all.  Unless  they  go  so  far  as  to  establish 
a  necessary  conclusion  of  this  guilt  which  they  offered  with  a  view 


54:8  LAW    OF    EVIDENCE    IN    CRIMINAL    CASES. 

to  establish,  they  are  utterly  worthless  and  ineffectual  for  the  in- 
vestigation of  the  truth.  It  is  not  enough  that  the  circumstances 
relied  upon  are  plainly  and  certainly  proved.  It  is  not  enough  to 
show  that  they  are  consistent  with  the  hypothesis  of  guilt,  They 
must  also  render  the  hypothesis  of  innocence  inadmissible  and 
impossible,  unreasonable  and  absurd,  or  they  have  proved  nothing 
at  all."  Rufus  Choate  in  Dalton  Divorce  Case  before  the  Su- 
preme Judicial  Court  of  Mass.  May,  1856. 

§  345.  Direct  and  Circumstantial  Evidence  Contrasted. — 
Direct  and  circumstantial  evidence  so  closely  hinge  upon  each 
other  that  it  is  often  vexatious  to  attempt  to  discriminate  between 
them.  Circumstances  are  always  looked  to,  to  support  or  contra- 
dict direct  evidence,  and  direct  evidence  is  absolutely  necessary 
to  prove  the  facts  upon  which  the  inference  in  circumstantial  evi- 
dence is  based.  One  sustains  and  supports  the  other.  Where, 
then,  is  the  line  to  be  drawn  by  which  one  is  to  be  used  and  the 
other  withheld  ?  "Or  how  can  any  definite  rule  be  laid  down  by 
which  one  is  to  be  deemed  more  satisfactory  than  the  other? 
With  the  facts  clearly  proved,  beyond  a  doubt,  in  either  case,  if 
a  logical  process  of  reasoning  is  adopted,  and  a  sound  judgment 
exercised,  the  result  must  be  the  same  in  both.  The  danger  of 
circumstantial  evidence  lies,  first,  in  the  liability  of  the  senses  to 
err  where  any  facts  are  sought  to  be  established,  instead  of  one, 
as  in  direct  evidence;  and,  second,  in  the  danger  of  intended  fal- 
sity where  many  witnesses  are  sworn  to  several  facts  instead  of 
one  to  the  main  issue;  and,  third,  in  the  danger  of  incorrect  infer- 
ences and  illogical  conclusions  from  jurors  not  accustomed  to  close 
habits  of  reasoning,  where  the  processes  of  inference  and  deduc- 
tion are  exercised,  either  upon  several  circumstances,  or  even  a 
single  one,  remote  from  the  main  fact  sought  to  be  established. 
2  Colby,  Crini.  L.  175. 

As  was  said  by  Chief  Justice  Gibson  in  the  case  of  Corn.  v. 
Harman,  -1  Pa.  269:  "The  only  difference  between  positive  and 
circumstantial  evidence  is,  that  the  former  is  more  immediate,  and 
has  fewer  links  in  the  chain  of  connection  between  the  premises 
and  conclusion;  but  there  may  be  perjury  in  both.  A  man  may 
as  well  swear  falsely  to  an  absolute  knowledge  of  a  fact  as  to  a 
number  of  facts,  by  which,  if  true,  the  question  of  guilt  or  inno- 
cence is  solved.  No  human  testimony  is  superior  to  doubt.  The 
machinery  of  criminal  justice,  like  every  other  production  of  man 


CIRCUMSTANTIAL    EVIDENCE.  549 

is  necessarily  imperfect,  but  you  are  not,  therefore,  to  stop  its 
wheels.  Innocent  men  have  doubtless  been  convicted  and  exe- 
cuted on  circumstantial  evidence;  but  innocent  men  have  some- 
times been  convicted  and  executed  on  what  is  called  positive 
proof.  All  evidence  is  more  or  less  circumstantial,  the  difference 
being  only  in  the  degree;  and  it  is  sufficient  for  the  purpose  when 
it  excludes  disbelief, — that  is,  actual  disbelief;  for  he  who  is  to 
pass  on  the  question  is  not  at  liberty  to  disbelieve  as  a  juror  while 
he  believes  as  a  man.  It  is  enough  that  his  conscience  is  clear." 
This  quotation  from  the  opinion  of  Chief  Justice  Gibson  was  ap- 
provingly referred  to  by  Mr.  Justice  Butler  in  his  charge  to  the 
jury  in  the  celebrated  case  of  Udderzook  v.  Com.  76  Pa.  340. 

§  346.  What  must  be  Proved  to  Warrant  a  Conviction 
by. — We  say  of  a  fact  or  statement,  that  it  is  proved,  when  we 
believe  its  truth  by  reason  of  some  other  fact  or  statement  from 
which  it  is  said  to  follow.  Most  of  the  propositions,  whether 
affirmative  or  negative,  universal,  particular,  or  singular,  which 
we  believe,  are  not  believed  on  their  own  evidence,  but  on  the 
ground  of  something  previously  assented  to,  from  which  they  are 
said  to  be  inferred.  To  infer  a  proposition  from  a  previous  prop- 
osition or  propositions;  to  give  credence  to  it,  or  claim  credence 
for  it,  as  a  conclusion  from  something  else;  is  to  reason,  in  the 
most  extensive  sense  of  the  term.  There  is  a  narrower  sense,  in 
which  the  name  reasoning  is  confined  to  the  form  of  inference 
which  is  termed  ratiocination,  and  of  which  the  syllogism  is  the 
general  type.  The  reasons  for  not  conforming  to  this  restricted 
use  of  the  term  were  stated  in  an  earlier  stage  of  our  inquiry,  and 
additional  motives  will  be  suggested  by  the  considerations  on 
which  we  are  now  about  to  enter. 

In  proceeding  to  take  into  consideration  the  cases  in  which  in- 
ferences can  legitimately  be  drawn,  we  shall  first  mention  some 
cases  in  which  the  inference  is  apparent,  not  real;  and  which 
require  notice  chiefly  that  they  may  not  be  confounded  with  cases 
of  inference  properly  so  called.  This  occurs  when  the  proposition 
ostensibly  inferred  from  another,  appears  on  analysis  to  be  merely 
a  repetition  of  the  same,  or  part  of  the  same,  assertion,  which  was 
contained  in  the  first.  All  the  cases  mentioned  in  books  of  logic 
as  examples  of  equipollency  or  equivalence  of  propositions,  are  of 
this  nature.  Mills,  Logic,  Ratiocinative  &  Inductive  (8th  ed.) 
122.  See  also  DeMorgan,  Formal  Logic  of  the  Calculus  of  In- 
ference Necessary  and   Probable. 


550  LAW    OF    EVIDENCE    IN    CRIMINAL    CASES. 

"  In  order  to  warrant  a  conviction  of  a  crime  on  circumstantial 
evidence,  each  fact  necessary  to  the  conclusion  sought  to  be  estab- 
lished must  be  proven  by  competent  evidence  beyond  a  reasonable 
doubt.':  Scott  v.  State,  19  Tex.  App.  325;  Lehman  v.  State,  18 
Tex.  App.  171,  51  Am.  Rep.  298.  "  Every  circumstance  material 
in  a  case  must  be  proven  beyond  a  rational  doubt,  or  it  is  the 
duty  of  the  jury  to  acquit."  Sumner  v.  State,  5  Blackf.  579. 
And  "each  essential  independent  fact  in  the  chain  or  series  of 
facts  relied  upon  to  establish  the  main  fact,  must  be  established 
to  a  moral  certainty  or  beyond  a  reasonable  doubt."  People  v. 
Phipps,  39  Cal.  326. 

"  When  the  evidence  against  the  defendant  is  made  up  wholly 
of  a  chain  of  circumstances,  and  there  is  a  reasonable  doubt  as  to 
one  of  the  facts  essential  to  establish  guilt,  it  is  the  duty  of  the 
jury  to  acquit."     People  v.  Anthony,  50  Cal.  397. 

"  Every  fact  in  a  chain  of  facts,  from  which  the  defendant's 
guilt  is  to  be  inferred,  must  be  proven  by  the  same  weight,  de- 
gree and  force  of  evidence  as  if  it  were  the  main  fact  of  the 
defendant's  guilt  itself."     Johnson  v.  State,  18  Tex.  App.  385. 

"  The  evidentiary  facts  must  all  be  proved,  and  the  existence 
of  none  of  them  can  be  presumed."     Burrill,  Circ.  Ev.  733. 

"  The  several  circumstances  upon  which  the  conclusion  depends 
must  be  fully  established  by  proof.  They  are  facts  from  which 
the  main  fact  is  to  be  inferred,  and  they  are  to  be  proved  by 
competent  evidence,  and  by  the  same  weight  and  force  of  evi- 
dence as  if  each  was  itself  the  main  fact  in  issue."  Com.  v. 
Webster,  5  Gush.  295,  317,  52  Am.  Dec.  711. 

"  The  facts  alleged  as  the  basis  of  any  legal  inference,  must  be 
clearly  proved  and  undubitably  connected  with  the  fact 'am  pro- 
landumP     Wills,  Circ.  Ev.  173. 

It  is  necessary  to  warn  the  jury  against  the  danger  of  being 
misled  by  a  train  of  circumstantial  evidence.  The  mind  is  apt 
to  take  a  pleasure  in  adapting  circumstances  to  one  another,  and 
even  straining  them  a  iittle.  if  need  be,  to  force  them  to  form 
parts  of  one  connected  whole,  and  the  more  ingenious  the  mind 
of  the  individual  the  more  likely  was  it,  in  considering  such 
matters,  to  overreach  and  mislead  itself,  to  supply  some  little 
link  that  is  wanting,  to  take  for  granted  some  fact  consistent  with 
it-  previous  theories  and  necessary  to  render  them  complete. 
Wills,  Circ.  Ev.  173. 


CIRCUMSTANTIAL    EVIDENCE.  551 

In  order  to  justify  the  inference  of  legal  guilt  from  circum- 
stantial evidence,  the  existence  of  the  inculpatory  facts  must  be 
absolutely  inconsistent  with  innocence,  and  incapable  of  explana- 
tion upon  any  other  reasonable  hypothesis  than  that  of  his  guilt; 
and,  further,  when  a  conviction  is  sought  upon  circumstantial 
evidence  alone,  the  state  must  show  by  a  preponderence  of  evi- 
dence that  the  alleged  facts  and  circumstances  are  absolutely 
incompatible  with  any  reasonable  hypothesis  other  than  the  guilt 
of  the  accused.     State  v.  JBolden,  4-2  Minn.  350. 

§  3-17.  Instructions  from  the  Court  Regarding  this  Grade 
of  Evidence. — In  the  case  of  ( 'lare  v.  People,  9  Colo.  123,  the 
evidence  was  wholly  circumstantial.  The  trial  judge  instructed 
the  jury  as  follows  : 

"That  the  rule  requiring  the  jury  to  be  satisfied  of  the  defend- 
ant's guilt  beyond  a  reasonable  doubt,  in  order  to  warrant  a  con- 
viction, does  not  require  that  the  jury  should  be  satisfied  beyond 
a  reasonable  doubt  of  each  link  in  the  chain  of  circumstances 
relied  upon  to  establish  the  defendant's  guilt;  it  is  sufficient  if  the 
jury  are  satisfied  beyond  a  reasonable  doubt  that  the  defendant  is 
guilty." 

Judge  Helm,  in  reversing  the  trial  court,  said: 

"The  metaphor  used  is  inaccurate,  and  liable  to  misconstruc- 
tion. It  is  incorrect  to  speak  of  a  body  of  circumstantial  evidence 
as  a  chain,  and  allude  to  the  different  circumstances  as  the  links 
constituting  such  chain;  for  a  chain  cannot  be  stronger  than  its 
weakest  link,  and  if  one  link  fails  the  chain  is  broken.  This 
figure  of  speech  may  perhaps  be  correctly  applied  to  the  ultimate 
and  essential  facts  necessary  to  a  conviction  in  criminal  cases;  since 
if  one  be  omitted  or  be  not  proven  beyond  a  reasonable  doubt, 
an  acquittal  must  follow.     .     .     . 

"The  word  'circumstance'  and  the  word  'fact'  are  frequently 
used  interchangeably.  .  .  .  In  cases  where  the  conviction  de- 
pends upon  circumstantial  evidence,  it  often  happens  that  one  or 
more  of  the  ultimate  or  essential  matters  may  very  appropriately 
be  called  circumstances;  and  such  matters,  whether  spoken  of  as 
circumstances  or  as  facts,  must  be  established  by  the  state  beyond 
a  reasonable  doubt.  .  .  .  We  deem  it  quite  as  reasonable  to 
suppose  that  the  jury  misunderstood  and  misapplied  the  language 
used  as  that  they  comprehended  its  appropriate  meaning  and  appli- 
cation.    Fortius  reason  the  judgment  must  be  reversed.     .     .     . 


552  LAW    OF    EVIDENCE    IN    CRIMINAL   CASES. 

To  prevent  reversal  for  error  in  the  charge,  it  must  appear  that 
the  prisoner  could  not  have  been  prejudiced  thereby." 

The  same  instruction  is  considered  at  length  in  People  v.  Aihin, 
66  Mich.  481,  and  its  fallacy  is  exposed;  the  court  concluding  its 
argument  by  saying : 

"Each  necessary  link,  each  and  every  material  and  necessary 
fact  upon  which  a  conviction  depends,  must  be  proven  beyond  a 
reasonable  doubt. 

••  The  party  upon  whom  the  burden  rests,  is  bound  to  prove 
every  single  circumstance  which  is  essential  to  the  conclusion,  in 
the  same  manner  and  to  the  same  extent  as  if  the  whole  issue  had 
rested  upon  the  proof  of  each  individual  and  essential  circum- 
stance."    Stark.  Ev.  (9th  Am.  ed.)  §  586. 

We  will  add  that  the  instructions  delivered  in  Clare  v. 
People,  9  Colo.  123,  were  again  the  subject  of  judicial  condem- 
nation in  the  celebrated  Graves  case,  where  the  conviction  by 
the  district  court  was  reversed  on  appeal  for  error  in  the  admis- 
sion and  rejection  of  evidence,  as  well  as  for  error  in  the  judge's 
charge.  This  case  has  attracted  great  attention — -was  vigorously 
prosecuted  and  ably  defended  and  will  be  found  reported  under 

the  title  of  People  v.  Graves,  18  Colo. .      The  decision  was- 

handed  down  in  February,  1893. 

§  348.  Great  Latitude  Allowed  in  the  Reception  of. — Great 
latitude  is  justly  allowed  by  the  law  to  the  reception  of  indirect 
or  circumstantial  evidence,  the  aid  of  which  is  constantly  required, 
not  merely  for  the  purpose  of  remedying  the  want  of  direct  evi- 
dence, but  of  supplying  an  invaluable  protection  against  imposi- 
tion.    Stark.  Ev.  81. 

The  greatest  scope  may  be  indulged  in  matters  of  circumstantial 
evidence.  Washington  v.  State,  8  Tex.  App.  377.  And  any 
evidence  may  be  resorted  to  which  tends  to  develop  a  fact,  which, 
if  shown,  would  enhance  the  prospects  of  conviction  or  acquittal. 
Svm/ms  v.  Stat< ,  1"  Tex.  App.  131;  Preston  v.  State,  8  Tex.  App.  30. 

§  349.  Views  of  Eminent  Text-writers. — Burrill  says:  "Sup- 
posing that,  by  a  course  of  examination,  combination  and  infer- 
ence, the  jury  have  reached  the  point  of  forming  an  affirmative 
belief  of  the  probability,  and  strong  probability,  of  the  hypothesis 
of  guilt,  their  task  is  not  yet  completed.  A  great  and  final  test 
of  the  accuracy  of  the  conclusion  they  are  thus  led  to  form 
remains  to  be  applied,  in  which  the  entire  and  peculiar  efficacy 


CIRCUMSTANTIAL    EVIDENCE.  DOO 

of  circumstantial  evidence  is  said  to  consist;  its  application  con- 
stituting the  second  stage  in  the  general  process  of  presumption. 
This  test  is  the  negative  point  of  view.  It  is  not  sufficient  that 
the  circumstances  proved  coincide  with,  account  for  and  therefore 
render  probable  the  hypothesis  sought  to  be  established;  but  they 
must  exclude,  to  a  moral  certainty,  every  other  hypothesis  but  that 
single  one."     Burrill,  Circ.  Ev.  181. 

In  another  work  of  merit,  the  same  line  of  thought  is  pursued, 
thus:  "The  hypothesis  of  delinquency  should  be  consistent  with 
all  the  facts  proved.  The  chief  danger  to  be  avoided  when  deal- 
ing with  presumptive  evidence  arises  from  aproneness  natural  to 
man,  to  jump  to  conclusions  from  certain  facts,  without  duly 
adverting  to  others  which  are  inconsistent  with  the  hypothesis 
which  those  facts  seem  to  indicate.  ...  It  should  never  he 
forgotten,  as  observed  by  an  able  writer  on  the  law  of  evidence, 
that  all  facts  and  circumstances  which  have  really  happened  were 
perfectly  consistent  with  each  other,  for  they  did  actually  so  con- 
sist; an  inevitable  consequence  of  which  is  that,  if  any  of  the  cir- 
cumstances established  in  evidence,  is  absolutely  inconsistent  with 
the  hypothesis  of  the  guilt  of  the  accused,  that  hypothesis  cannot 
be  true."     2  Best,  Ev.  (Morgan's  Notes)  §  451. 

This  familiar  principle  of  evidentiary  law  is  frequently  enunci- 
ated in  criminal  reports.  People  v.  Cunningham,,  0  Park.  Crim. 
Rep.  398;  People  v.  Strong,  30  Cal.  151;  Harrison  v.  State,  6 
Tex.  App.  42;  State  v.  Moxl&y,  102  Mo.  374. 

"Where  there  is  nothing  but  the  evidence  of  circumstances  to 
guide  you,"  said  Mr.  Justice  Bailey,  "those  circumstances  ought 
to  be  closely  and  necessarily  connected,  and  to  be  made  as  clear 
as  if  there  were  absolute  and  positive  proof."  Rex  v.  Downing, 
Salop  Summer  Assizes,  1822.  Every  circumstance,  therefore, 
which  is  not  clearly  shown  to  be  really  connected  as  its  correlative 
with  the  hypothesis  it  is  supposed  to  support,  must  be  rejected 
from  the  judicial  balance;  in  other  words,  it  must  be  distinctly 
established  that  there  exists  between  the  factum  probanrfum  and 
the  facts  which  are  adduced  in  proof  of  it,  a  real  connection, 
either  evident  and  necessary,  or  so  highly  probable  as  to  admit  of 
no  other  reasonable  explanation.  See  Mittermaier,  chap.  55,  57; 
Wills,  Circ.  Ev.  chap.  6,  pp.  173,  474. 

§  350.  Review  of  the  Celebrated  Webster  Case— the  Har- 
ris Case. — Few  criminal  cas^s  have  been  decided  in  this  country 


551  LAW    OF    EVIDENCE    IN    CRIMINAL    CASES. 

that  have  given  a  wider  scope  to  evidentiary  rules  or  have  called 
fur  a  more  extended  application  of  the  many  principles  they 
embody,  than  that  of  the  celebrated  Webster  case  decided  by  the 
Massachusetts  supreme  judicial  court  in  March,  1850.  Com. 
v.  Webster,  5  Cush.  295,  52  Am.  Dec.  711.  The  high  social  dis- 
tinction enjoyed  by  the  prisoner,  his  scientific  attainments  and 
his  close  relations  with  the  greatest  university  of  our  land  threw 
around  the  trial  of  that  case  an  interest  that  but  rarely  attaches 
to  a  criminal  prosecution.  The  distinguished  chief  justice  who 
presided  lias  left  behind  him  a  monumental  record  of  rare  legal 
accomplishments  coupled  with  great  logical  acuteness,  rigid  im- 
partiality and  keen  and  unrelenting  perceptions  of  what  circum- 
stantial evidence  should  disclose  in  order  to  meet  the  exactions  of 
a  capital  case.  These  considerations  taken  in  connection  with  the 
eminence  of  the  counsel  appearing  for  both  the  common  wealth  and 
for  the  prisoner,  must  ever  invest  this  celebrated  case  with  intense 
interest  and  lasting  value.  The  following  quotations  of  the  opinions 
of  Chief  Justia  Shaw  bear  their  own  commentary  and  vindication. 
Much  has  been  written  since  this  opinion  has  been  handed  down 
pertaining  to  this  subject;  but  the  entire  range  of  judicial  discus- 
sion or  theoretical  review  has  failed  to  disclose  a  more  apt  or  con- 
vincing statement  of  the  rules  pertaining  to  this  particular  grade 
of  evidence  than  are  found  within  the  paragraphs  of  that  singu- 
larly exhaustive  and  scholarly  opinion.  The  most  efficient  and 
instructive  application  of  the  rules  of  circumstantial  evidence 
were  demanded  by  that  celebrated  case  and  every  exaction  was 
fully  met. 

"The  distinction  between  direct  and  circumstantial  evidence  is 
this.  Direct  or  positive  evidence  is  when  a  witness  can  be  called 
to  testify  to  the  precise  fact  which  is  the  subject  of  the  issue  on 
trial;  that  is,  in  a  case  of  homicide,  that  the  party  accused  did 
cause  the  death  of  the  deceased.  Whatever  may  be  the  kind  or 
force  of  the  evidence,  this  is  the  fact  to  be  proved.  But  suppose 
no  person  was  present  on  the  occasion  of  the  death,  and  of  course 
that  no  one  can  be  called  to  testify  to  it;  is  it  wholly  unsuscepti- 
ble of  legal  proof?  Experience  has  shown  that  circumstantial 
evidence  may  be  offered  in  such  a  case;  that  is,  that  a  body  of 
facts  may  be  proved  of  so  conclusive  a  character,  as  to  warrant  a 
firm  belief  of  the  fact,  quite  as  strong  and  certain  as  that  on  which 
discreet  men  are  accustomed  to  act,  in  relation  to  their  most 


CIRCUMSTANTIAL    EVIDENCE.  555 

important  concerns.  It  would  be  injurious  to  the  best  interests 
■of  society,  if  such  proof  could  not  avail  in  judicial  proceeding's. 
If  it  was  necessary  always  to  have  positive  evidence,  how  many 
criminal  acts  committed  in  the  community,  destructive  of  its  peace 
-and  subversive  of  its  order  and  security,  would  go  wholly  unde- 
tected and  unpunished  '. 

"The  necessity,  therefore,  of  resorting  to  circumstantial  evidence 
if  it  is  a  safe  and  reliable  proceeding,  is  obvious  and  absolute. 
Crimes  are  secret.  Most  men,  conscious  of  criminal  purposes, 
and  about  the  execution  of  criminal  acts,  seek  the  security  of 
secrecy  and  darkness.  It  is  therefore  necessary  to  use  all  other 
modes  of  evidence  besides  that  of  direct  testimony,  provided  such 
proofs  maybe  relied  on  as  leading  to  safe  and  satisfactory  conclu- 
sions; and.  thanks  to  a  beneficent  providence,  the  laws  of  nature 
and  the  relations  of  things  to  each  other  are  so  linked  and  com- 
bined Together,  that  a  medium  of  proof  is  often  therein*  furnished, 
leading  to  inferences  and  conclusions  as  strong  as  those  arising 
from  direct  testimony. 

"On  this  subject,  I  will  once  more  ask  attention  to  a  remark  in 
East's  Pleas  of  the  Crown,  chap.  5,  §  11:  -Perhaps,'  he  says, 
•  strong  circumstantial  evidence,  in  cases  of  crime  like  this,  com- 
mitted for  the  most  part  in  secret,  is  the  most  satisfactory  of  any 
from  whence  to  draw  the  conclusion  of  guilt;  for  men  may  be 
seduced  to  perjury  by  many  base  motives,  to  which  the  secret 
nature  of  the  offense  may  sometimes  afford  a  temptation;  but  it 
can  scarcely  happen  that  many  circumstances,  especially  if  they 
be  such  over  which  the  accuser  could  have  no  control,  forming 
together  the  links  of  a  transaction,  should  all  unfortunately  con- 
cur to  fix  the  presumption  of  guilt  on  an  individual,  and  yet  such 
a  conclusion  be  erroneous.' 

"Each  of  these  modes  of  proof  has  its  advantages  and  disadvan- 
tages; it  is  not  easy  to  compare  their  relative  value.  The  advan- 
tage of  positive  evidence  is,  that  it  is  the  direct  testimony  of  a  wit- 
ness to  the  fact  to  be  proved,  who,  if  he  speaks  the  truth,  saw  it 
■done;  and  the  only  question  is,  whether  he  is  entitled  to  belief. 
The  disadvantage  is,  that  the  witness  may  he  falsi'  and  corrupt, 
and  that  the  case  may  not  afford  the  means  of  detecting  his  false- 
hood. 

"But,  in  a  case  of  circumstantial  evidence  where  no  witness  can 
testify  directly  to  the  fact  to  be  proved,  it  is  arrived  at  by  a  series 


556  LAW  OF  EVIDENCE  IN  CRIMINAL  CASES. 

of  other  facts,  which  by  experience  have  been  found  so  associated 
with  the  fact  in  question,  that  in  the  relation  of  cause  and  effect, 
they  lead  to  a  satisfactory  and  certain  conclusion;  as  when  foot- 
prints are  discovered  after  a  recent  snow,  it  is  certain  that  some 
animated  being  has  passed  over  the  snow  since  it  fell;  and,  from 
the  form  and  number  of  the  footprints,  it  can  be  determined  with 
equal  certainty,  whether  they  are  those  of  a  man,  a  bird,  or  a 
quadruped.  Circumstantial  evidence,  therefore,  is  founded  on 
experience  and  observed  facts  and  coincidences,  establishing  a 
connection  between  the  known  and  proved  facts  and  the  fact 
sought  to  be  proved.  The  advantages  are,  that,  as  the  evidence 
commonly  comes  from  several  witnesses  and  different  sources,  a 
chain  of  circumstances  it  less  likely  to  be  falsely  prepared  and 
arranged,  and  falsehood  and  perjury  are  more  likely  to  be  detected 
and  fail  of  their  purpose.  The  disadvantages  are  that  a  jury  has 
not  only  to  weigh  the  evidence  of  facts,  but  to  draw  just  conclu- 
sions from  them;  in  doing  which,  they  may  be  lead  by  prejudice 
or  partiality,  or  by  want  of  due  deliberation  and  sobriety  of  judg- 
ment, to  make  hasty  and  false  deductions;  a  source  of  error  not 
existing  in  the  consideration  of  positive  evidence. 

"From  this  view,  it  is  manifest,  that  great  care  and  caution  ought 
to  be  used  in  drawing  inferences  from  proved  facts.  It  must  be 
a  fair  and  natural,  and  not  a  forced  or  artificial  conclusion;  as- 
when  a  house  is  found  to  have  been  plundered,  and  there  are  in- 
dieations  of  force  and  violence  upon  the  windows  and  shutters, 
the  inference  is  that  the  house  was  broken  open,  and  that  the 
persons  who  broke  open  the  house  plundered  the  property."  Com. 
v.   Webster,  59  Cush.  295,  52  Am.  Dec.  711. 

Mr.  Justice  Grey  of  the  New  York  court  of  appeals  in  a  very 
recent  case  that  has  attracted  wide  attention  says : 

"All  evidence  is,  in  a  strict  sense,  more  or  less  circumstantial, 
whether  consisting  in  facts  which  permit  the  inference  of  guilt,. 
or  whether  given  by  the  eye-witnesses  of  the  occurrence;  for  the 
testimony  of  eye-witnesses  is,  of  course,  based  upon  circumstances 
more  or  less  distinctly  and  directly  observed.  But,  of  course, 
there  is  a  difference  between  evidence  consisting  in  facts  of  a  pe- 
culiar nature  and  hence  giving  rise  to  presumptions,  and  evidence 
which  is  direct,  as  consisting  in  the  positive  testimony  of  eye-wit- 
aesses;  and  the  difference  is  material  according  to  the  degree  of 
exactness  and  relevancy,  the  weight  of  the  circumstances  and  the 


CIRCUMSTANTIAL    EVIDENCE.  557 

credibility  of  witnesses.  The  mind  may  be  reluctant  to  conclude 
upon  the  issue  of  guilt  in  criminal  cases  upon  evidence  which  is 
not  direct,  and  yet,  in  the  facts  brought  out,  when  taken  together, 
all  point  in  the  one  direction  of  guilt,  and  to  the  exclusion  of  any 
other  hypothesis,  there  is  no  substantial  reason  for  that  reluctance. 
Purely  circumstantial  evidence  may  be  often  more  satisfactory,  and 
a  safer  form  of  evidence,  for  it  must  rest  upon  facts  which,  to  prove 
the  truth  of  the  charge  made,  must  collectively  tend  to  establish 
the  guilt  of  the  accused.  ...  A  fact  has  the  sense  of,  and  is 
equivalent  to,  a  truth,  or  that  which  is  real.  It  is  in  the  ingenious 
combination  of  facts  that  they  may  be  made  to  deceive,  or  to  ex- 
press what  is  not  the  truth.  In  the  evidence  of  eye-witnesses  to 
prove  the  facts  of  an  occurence  we  are  not  guaranteed  against 
mistake  and  falsehood,  or  the  extortion  of  truth  by  exaggeration 
or  prejudice,  but  when  we  are  dealing  with  a  number  of  estab- 
lished facts,  if,  upon  arranging,  examining,  and  weighing  them  in 
our  mind,  we  reach  only  the  conclusion  of  guilt,  the  judgment 
rests  upon  pillars  as  substantial  and  sound  as  though  resting  upon 
the  testimony  of  eye-witnesses.  The  necessity  of  a  resort  to  cir- 
cumstantial evidence  in  criminal  cases  is  apparent  in  the  nature  of 
things,  for  a  criminal  act  is  sought  to  be  performed  in  secrecy, 
and  an  intended  wrongdoer  usually  chooses  his  time,  and  an  oc- 
casion when  most  favorable  to  concealment,  and  sedulously  schemes 
to  render  detection  impossible.  All  that  we  should  recpaire  of 
circumstantial  evidence  is  that  there  shall  be  positive  proof  of  the 
facts  from  which  the  inference  of  guilt  is  to  be  drawn,  and  that 
that  inference  is  the  only  one  which  can  reasonably  be  drawn  from 
those  facts."     People  v.  Harris  (X.  Y.)  Jan.  17,  1893. 

cj  351.  The  Mayhrick  Case  Considered. — The  necessity  of 
reviewing  all  criminal  cases,  especially  those  dependent  upon  cir- 
cumstantial evidence,  and  of  correcting  such  errors  as  may  have 
determined  the  verdict  or  in  fact  presided  throughout  the  entire 
trial,  has  received  ample  vindication  in  a  recent  English  ease  pre- 
sided over  by  Sir  James  Stephen.  It  has  since  been  abundantly 
established  that  the  celebrated  baronet  was  relapsing  into  the 
early  stages  of  senility  and  decay,  but  the  appalling  result  can  be 
only  discerned  by  a  reference  to  the  facts  elicited  on  the  trial. 

Florence  Maybrick  is  an  American  woman  who  was  tried  in 
Liverpool,  England,  in  August,  L889,  for  the  murder  of  her  hus- 
band.    August  27th  she  was  found  guilty  and  sentenced    to  bo 


558  [.AW  OF  EVIDENCE  IN  CRIMINAL  CASES. 

hanged.  The  trial  caused  great  public  excitement.  When  the 
verdict  was  announced  there  were  violent  manifestations  of  dis- 
approval in  the  court  room,  and  a  storm  of  protest  throughout  all 
England  followed.  The  charge  against  Mrs.  Maybrick  was  that 
she  had  killed  her  husband  by  giving  him  arsenic,  but  the  evi- 
dence was  weak,  flimsy  and  contradictory,  while  the  charge  of 
the  presiding  judge  to  the  jury  was  grossly  unfair.  Because  of 
his  behavior  on  this  occasion  and  at  subsequent  trials,  Justice  Ste- 
phen has  been  pronounced  insane  and  imbecile,  and  he  has  since 
resigned  from  the  bench.  There  was  a  deep  conviction  in  the 
popular  mind  that  gross  injustice  had  been  done,  and  floods  of 
petitions,  demands  and  protests  poured  into  the  home  office.  The 
secretary  felt  compelled  by  the  agitation  to  take  the  case  under 
advisement,  and  after  fourteen  days  of  close  investigation  came  to 
the  conclusion  that  "there  was  a  reasonable  doubt  whether  in  fact 
James  Maybrick's  death  was  caused  by  poison."  Mrs.  Maybrick's 
sentence  was  thereupon  commuted  to  penal  servitude  for  life,  and 
for  over  three  years  she  has  been  confined  in  Woking  prison. 

Thus  there  is  presented  the  singular  spectacle  of  a  woman  un- 
dergoing punishment  for  a  crime  of  which,  in  the  opinion  of  the 
home  secretary,  there  is  a  reasonable  doubt  of  her  guilt. 

The  outrageous  deportment  of  Mr.  Justice  Stephen  during  the 
trial  of  this  case,  is  thus  commented  upon  by  Mr.  Edward  Stead: 

"  lie  laid  himself  out  to  excite  prejudice  against  this  'horrible 
woman.*  but  even  when  he  had  finished  his  twelve  hour  harangue 
tor  the  prosecution  from  the  bench,  he  had  sufficient  judicial  acu- 
men left  amidst  preceptible  decay  of  his  faculties  to  doubt  the 
possibility  of  a  verdict  of  guilty.  I  was  assured  in  Liverpool  by 
one  who  had  it  direct  from  the  official  concerned,  that  when  the 
jury  retired  the  judge  called  up  the  clerk  and  asked  him  what  the 
verdict  would  be.  'My  lord,'  he  replied,  'I  am  not  the  jury.' 
'  ( )h.'  said  the  judge,  'it  is  impossible  for  them  to  find  her  guilty 
in  face  of  the  medical  evidence.'  That  was  also  the  opinion  of 
the  prosecution." 

He  ;dso  states  that  under  the  English  criminal  law  "no  appeal 
is  allowed  from  an  unjust  verdict  or  sentence,  not  even  in  a  case 
fe  and  death;  while  in  a  civil  action,  where  only  a  bale  of  cot- 
ton is  at  stake  it  is  possible  to  appeal  from  court  to  court,  even  to 
the  House  of  Lords.  Thus  Mrs.  Maybrick's  only  hope  is  in  the 
pardoning  power,  and  the  plan  is  to  invoke  this  power  by  agitation." 


CIRCUMSTANTIAL    EVIDENCE.  559 

§  352.  The  Stokes  Case  Considered. — If  all  the  circumstances 

shown  are  consistent  with  innocence,  then  there  can  be  no  con- 
viction. If  they  are  not,  then  the  question  is  whether  they  point 
to  guilt  so  clearly  and  distinctly  as  to  satisfy  the  mind  beyond  a 
reasonable  doubt.  The  facts  proved  must  all  be  consistent  with 
and  point  to  the  defendant's  guilt  not  only,  but  they  must  be  in- 
consistent with  his  innocence.  Church,  Ok.  J.,  in  People  v.  B<  n- 
nett,  49  N.  Y.  144.  If  equally  susceptible  of  two  interpretations, 
one  innocent  and  one  not,  the  innocent  one  must  be  taken. 
Pollock  v.  Pollock,  71  N.  Y.  137;  Shultz  v.  Hoagland,  85  N. 
Y.  464.  So  it  is  said  that  if  it  be  shown  that  either  the  defend- 
ant or  a  third  person  committed  the  deed,  but  it  cannot  be  dis- 
tinctly ascertained  which  one,  the  defendant  cannot  be  convicted. 
1  Bishop,  Crim.  Proc.  (3d  ed.)  £  1106.  The  same  author,  section 
1079,  lays  it  down  as  established  by  many  adjudications  that  the 
test  of  the  sufficiency  of  circumstantial  evidence  is  that  the  facts 
proved  can  be  reasonably  accounted  for  on  no  hypothesis  which 
excluded  the  defendant's  guilt,  that  with  the  theory  of  his  guilt 
they  are  harmonious  and  consistent,  and  that  they  point  to  it  so 
clearly  and  distinctly  as  to  satisfy  the  jury  of  it  beyond  a  reason- 
able doubt.     People  v.  Stokes,  -2  X.  Y.  Crim.  Rep.  382. 

§  353.  Yiews  of  the  Texas  Supreme  Court. — The  Texas 
supreme  court  has  held,  that  to  justify  conviction  upon  circum- 
stantial evidence  alone,  the  facts  relied  on  must  be  absolutely  in- 
compatible with  the  innocence  of  the  accused,  and  incapable  of 
explanation  upon  any  other  reasonable  hypothesis  than  that  of 
guilt.  Barnes  v.  State,  41  Tex.  342;  Black  v.  State,  1  Tex. 
App.  391. 

In  the  case  of  Burrell  v.  State,  18  Tex.  713,  the  judgment  was 
reversed  as  to  the  appellant,  Burns,  because  the  only  evidence 
tending  to  criminate  him  was  wholly  circumstantial,  and  the  court 
failed  to  instruct  the  jury  upon  its  effect.  They  were  instructed 
that  "  circumstantial  testimony  must  tend  closely  to  prove  the 
fact,  or  it  is  not,  of  itself,  sufficient,  but  may  still  be  entitled  to 
great  weight  in  connection  with  direct  testimony." 

In  Cave  v.  State,  41  Tex.  182,  it  was  held  that  in  cases  depend- 
ing upon  circumstantial  evidence,  full  instruction  upon  that  species 
of  evidence  is  requisite  and  essential. 

§354.  Comparative  Weight  of  Direct  and  Circumstantial 
Evidence. — With  respect  to  the  comparative  weight  due  to  direct 


560  LAW    OF    EVIDENCE    IN    CRIMINAL    CASES. 

and  presumptive  evidence,  it  has  been  said  that  circumstances  are 
in  many  cases  of  greater  force  and  more  to  be  depended  on  than 
the  testimony  of  living  witnesses;  inasmuch  as  witnesses  may 
either  be  mistaken  themselves,  or  wickedly  intend  to  deceive 
others;  whereas  circumstances  and  presumptions  naturally  and 
necessarily  arising  out  of  a  given  fact  cannot  lie.  Annesley  v.  Lord 
Anglesea,  17  7 low.  St.  Tr.  1430.  It  may  be  observed,  that  it  is 
generally  the  property  of  circumstantial  evidence  to  bring  a  more 
extensive  assemblage  of  facts  under  the  cognizance  of  a  jury,  and 
to  require  a  greater  number  of  witnesses,  than  where  the  evidence 
is  direct,  whereby  such  circumstantial  evidence  is  more  capable  of 
being  disproved  if  untrue.  See  3  Bentham,  Kationale  of  Judicial 
Evidence,  251.  On  the  other  hand,  it  may  be  observed,  that  cir- 
cumstantial evidence  ought  to  be  acted  on  with  great  caution, 
especially  where  an  anxiety  is  naturally  felt  for  the  detection  of 
great  crimes.  This  anxiety  often  leads  witnesses  to  mistake  or 
exaggerate  facts,  and  juries  to  draw  rash  inferences.  Not  un- 
frequently  a  presumption  is  formed  from  circumstances  which 
would  not  have  existed  as  a  ground  of  crimination,  but  for  the 
accusation  itself;  such  are  the  conduct,  demeanor,  and  expressions 
of  a  suspected  person,  when  scrutinized  by  those  who  suspect  him. 
And  it  may  be  observed,  that  circumstantial  evidence,  which 
must  in  general  be  submitted  to  a  court  of  justice  through  the 
means  of  witnesses,  is  capable  of  being  perverted  in  like  manner 
as  direct  evidence,  and  that,  moreover,  it  is  subjected  to  this  ad- 
ditional infirmity,  that  it  is  composed  of  inferences  each  of  which 
may  be  fallacious.  Phil.  Ev.  (10th  ed.)  468;  Phil.  Ev.  (8th  ed.) 
458;  Eoscoe,  Grim.  Ev.  (7th  ed.)  14. 

The  relative  merit  of  evidence  direct  and  circumstantial  has 
proved  fertile  matter  of  controversy.  On  the  one  hand,  it  has 
been  widely  claimed  in  behalf  of  circumstantial  evidence  that, 
while  witnesses  lie,  facts  do  not.  Rex  v.  Blandy,  18  How.  St. 
Tr.  1118,  L187;  6  Paley,  Moral  and  Political  Philosophy,  chap.  9, 
Ram.  Facts  (3d  Am.  ed.)  287;  Burnett,  Crim.  Law  of  Scotland, 
523;  2  Burke's  Works  (II.  cV  B.'s  ed.)  624.  On  the  other  hand, 
frequent  reference  is  made  to  lamentable  instances  of  wrong  con- 
viction on  such  evidence.  Bam,  Facts  (3d  Am.  cd.)  439-459.  Each 
have  their  peculiar  advantages  and  characteristic  dangers.  Ab- 
stractedly speaking,  presumptive  evidence  is  inferior  to  direct 
evidence,  seeing  that  it  is  in  truth  only  a  substitute  for  it,  and  an 


CIRCUMSTANTIAL    EVIDENCE.  5G1 

indirect  mode  of  proving  that  which  otherwise  might  not  be 
probable  at  all.  Gilbert,  Ev.  (4th.  ed.)  157;  Rex  v.  Burdett,  4 
Barn.  &  Aid.  95,  123. 

"The  force  of  circumstantial  evidence,"  observes  Mr.  Starkie, 
"  being  exclusive  in  its  nature,  and  the  mere  coincidence  of  the 
hypothesis  with  the  circumstances  being,  in  the  abstract,  insuffi- 
cient, unless  they  exclude,  every  other  supposition,  it  is  essential 
to  inquire,  with  the  most  scrupulous  attention,  what  other 
hypothesis  there  may  be  agreeing  wholly  or  partially  with  the 
facts  in  evidence.  Those  which  agree  even  partially  with  the  cir- 
cumstances are  not  unworthy  of  examination,  because  they  lead 
to  a  more  accurate  examination  of  those  facts  with  which,  at  first, 
they  might  appear  to  be  inconsistent;  and  it  is  possible  that  on 
a  more  accurate  examination  of  these  facts,  their  authenticity 
may  be  rendered  doubtful,  or  even  altogether  disproved."  The 
same  able  writer  from  whom  this  passage  is  quoted  has  another 
observation,  which  also  should  be  kept  in  view,  while  dealing  with 
the  facts  of  this  case. 

"  To  acquit,  on  light,  trivial,  and  fanciful  suppositions,  and 
remote  conjectures,  is  a  virtual  violation  of  the  juror's  oath- 
while,  on  the  other  hand,  he  ought  not  to  condemn,  unless  the 
evidence  exclude  from  his  mind  all  reasonable  doubt  as  to  the 
guilt  of  the  accused,  and  unless  he  be  so  convinced  by  the  evi- 
dence, that  he  would  venture  to  act  upon  that  conviction,  in 
matters  of  the  highest  concern  and  importance  to  his  own  inter- 
est."    Phillips,  Famous  Cases  Circ  Ev.  53<>. 

§  355.  Rules  of  Induction  Specially  Applicable  to  Circum- 
stantial Evidence. — Mr.  A V  ills  in  his  justly  celebrated  essay  on 
the  Principles  of  Circumstantial  Evidence,  tabulates  a  few  of  the 
leading  rules  which  are  closely  identified  with  this  topic. 

"Rule  1. — The  facts  alleged  as  the  basis  of  any  legal  inference 

must    be  clearly    proved,  and   indubitably  connected    with    the 

factum  probandum. 

•?:-  *  *  *  *  ■;•:•  *  *  *  * 

"Rule  2. — The  burden  of  proof  is  always  on  the  party  who 

asserts  the  existence  of  any  fact  which  infers  legal  accountability. 

This  is  a  universal  rule  of  jurisprudence,  founded   upon  evident 

principles  of  justice;    and  it  is  a  necessary  consequence,  that  the 

affirmant  party  is  not  absolved   from  its  obligation  because  of  the 

difficulty   which   may   attend   its   application.      No   man   can   be 

36 


562  LAW    OF    EVIDENCE    IN    CRIMINAL   CASES. 

justly  deprived  of  his  social  rights  but  upon  proof  that  he  has- 
committed  some  act  which  legally  involves  the  forfeiture  of  them. 
The  law  respects  the  status  in  quo,  and  regards  every  man  as 
legally  innocent  until  the  contrary  be  proved.  To  prove  a  nega- 
tive is  in  most  cases  difficult,  in  many  impossible.  Criminality. 
therefore,  is  never  to  be  presumed.  But,  nevertheless,  the  opera- 
tion of  tliis  rule  may,  to  a  certain  extent,  be  modified  by  circum- 
stances  which  create  a  counter-obligation,  and  shift  the  onus 
prooandi.  Lord  Brougham  said  that  the  burden  of  proof  often 
shifts  about  from  one  party  to  another  in  the  progress  of  a  cause, 
according  as  the  evidence  raises  a  presumption  one  way  or  the 
other.  It  follows,  from  the  very  nature  of  the  circumstantial 
evidence,  that,  in  drawing  an  inference  or  conclusion  as  to  the 
existence  of  a  particular  fact  from  other  facts  that  are  proved, 
regard  must  always  be  had  to  the  nature  of  the  particular  case, 
and  the  facility  that  appears  to  be  afforded,  either  of  explanation 

or  contradiction. 

*         *         ******** 

"Rule  3. — In  all  cases,  whether  direct  or  circumstantial  evidence, 
the  best  evidence  must  be  adduced  which  the  nature  of  the  case 
admits.  The  suppression  or  non-production  of  pertinent  and  co- 
gent evidence  necessarily  raises  a  strong  presumption  against  the 
party  who  withholds  such  evidence  when  he  has  it  in  his  power 
to  produce  it,  of  which  some  interesting  exemplifications  appeal- 
in  other  parts  of  this  essay.  This  rule  applies  a  fortiori  to  cir- 
cumstantial evidence,  a  kind  of  proof  which,  for  reasons  which 
have  been  already  urged,  is  inherently  inferior  to  direct  and  posi- 
tive testimony;  and,  therefore,  whenever  such  evidence  is  capable 
of  being  adduced,  the  very  attempt  to  substitute  a  description  of 
evidence  not  of  the  same  degree  of  force,  necessarily  creates  a 
suspicion  that  it  is  withheld  from  corrupt  and  sinister  motives. 
Nor  is  the  application  of  the  rule  conlined  to  the  proof  of  the  prin- 
cipal fact;  it  is  'the  master  rule  which  governs  all  the  subordinate 
rules.'  .  .  .  The  rule  is,  however,  necessarily  relaxed,  where 
its  application  becomes  impracticable  by  the  wrongful  act  of  the 
party  who  would  otherwise  be  entitled  to  claim  its  protection;  as 
where  a  witness  is  kept  out  of  the  way  by  or  on  his  behalf  (Reg. 
v.  Guttridge,  9  Car.  &  P.  471;  Reg.  v.  Scaife,  20  L.  J.  M.  C.  229; 
2  Hawk,  P.  C.  chap.  46,  §  15);  or  a  deed  or  other  instrument  in 
his  possession,  which  he  refuses,  after  notice,  to  produce.     Rex  v. 


CIRCUMSTANTIAL    EVIDENCE.  563 

Hunter,  3  Car.  &  P.  591,  4  Car.  &  P.  128;  Rex  v.  JIaworth,  4 
Car.  &  P.  251. 

"Considering,  moreover,  the  inherent  infirmity  of  human  mem- 
ory, in  the  fair  construction  and  application  of  this  rule,  evidence 
ought  in  all  criminal  cases,  and  a  fortiori  in  cases  of  circumstan- 
tial evidence,  to  be  received  with  distrust,  wherever  any  considera- 
ble time  has  elapsed  since  the  commission  of  the  alleged  offense. 
.  .  .  An  unavoidable  consequence  of  great  delay  is,  that  the  party 
is  deprived  of  the  means  of  vindicating  his  innocence,  or  of  proving 
the  attendant  circumstances  of  extenuation,  the  crime  itself  be- 
comes forgotten,  or  is  remembered  but  as  a  matter  of  tradition, 
and  the  offender  may  have  become  a  different  moral  being;  in 
such  circumstances  punishment  can  seldom,  perhaps  never,  be 
efficacious  for  the  purpose  of  example.  On  those  accounts  judges 
and  juries  are  not  always  reluctant  to  convict  parties  charged  with 
offenses  committed  long  previously. 

"Rule  1. — In  order  to  justify  the  inferences  of  guilt,  the  incul- 
patory facts  must  be  incompatible  with  the  innocence  of  the 
accused,  and  incapable  of  explanation  upon  any  other  reasonable 
hypothesis  than  that  of  his  guilt.  This  is  the  fundamental  rule, 
the  experimentum  cruris  by  which  the  relevancy  and  effect  of 
circumstantial  evidence  must  be  estimated.  The  awards  of  penal 
law  can  be  justified  only  when  the  strength  of  our  convictions  is 
equivalent  to  moral  certainty;  which,  as  we  have  seen,  is  that  state 
of  the  judgment,  grounded  upon  an  adequate  amount  of  appro- 
priate evidence,  which  induces  a  man  of  sound  mind  to  act  with- 
out hesitation  in  the  most  important  concerns  of  human  life.  In 
cases  of  direct  credible  evidence,  that  degree  of  assurance  imme- 
diately and  necessarily  ensues;  but  in  estimating  the  effect  of  cir- 
cumstantial evidence,  there  is  of  necessity  an  ulterior  intellectual 
process  of  inference  which  constitutes  an  essential  element  of 
moral  certainty.  The  most  important  part  of  the  inductive  pro- 
cess, especially  in  moral  inquiries,  is  the  correct  exercise  of  the 
judgment  in  drawing  the  proper  inference  from  the  known  to  the 
unknown,  from  the  facts  proved  to  the  factum  prdbandum.  A 
number  of  secondary  facts  of  an  inculpatory  moral  aspect  being 
given,  the  problem  is,  to  discover  their  causal  moral  source,  not 
by  arbitrary  assumption,  but  by  the  application  of  the  principles, 
of  experience  in  relation  to  the  immutable  laws  of  human  nature 
and  conduct.     It  is   not   enough,  however,  that  a  particular  by- 


564  LAW    OF    EVIDENCE    IN    CRIMINAL    CASES. 

pothesis  will  explain  all  the  phenomena;  nothing  must  be  inferred 
because,  if  true,  it  would  account  for  the  facts;  and  if  the  circum- 
stances are  equally  capable  of  solution  upon  any  other  reasonable 
hypothesis,  it  is  manifest  that  their  true  moral  cause  is  not  exclu- 
sively ascertained,  but  remains  in  uncertainty;  and  they  must 
therefore  be  discarded  as  conclusive  presumptions  of  guilt.  Every 
other  reasonable  supposition  by  which  the  facts  may  be  explained 
consistently  with  the  hypothesis  of  innocence  must  therefore  be 
rigorously  examined  and  successively  eliminated;  and  only  when 
no  other  supposition  will  reasonably  account  for  all  the  conditions 

of  the  case,  can  the  conclusion  of  guilt  be  legitimately  adopted. 
********** 

Rule  5. — If  there  be  any  reasonable  doubt  of  the  guilt  of  the 
accused,  he  is  entitled,  as  of  right,  to  be  acquitted.  In  other 
words,  there  must  be  no  uncertainty  as  to  the  reality  of  the  con- 
nection of  the  circumstances  of  evidence  with  the  factum,  pro- 
handura,  or  as  to  the  sufficiency  of  the  proof  of  the  corpus  delicti, 
or,  supposing  those  points  to  be  satisfactorily  established,  as  to 
the  personal  complicity  of  the  accused.  This  is  in  strictness 
hardly  so  much  a  distinct  rule  as  a  consequence  naturally  flowing 
from,  and  virtually  comprehended  in  the  preceding  rules.  In- 
deed, it  is  more  properly  a  test  of  the  right  application  of  those 
rules  to  the  facts  of  the  particular  case.  The  necessity  and  value 
of  such  test  is  manifest  from  the  consideration  of  the  numerous 
fallacies  incidental  to  the  formation  of  the  judgment  on  indirect 
evidence  and  contingent  probabilities,  and  form  the  impossibility 
in  all  cases  of  drawing  the  line  between  moral  certainty  and  doubt. 
.  .  .  While  it  is  certain  that  circumstantial  evidence  is  frequently 
mi  >st  convincing  and  satisfactory,  it  must  never  be  forgotten,  as  was 
remarked  by  that  wise  and  upright  magistrate,  Sir  Matthew  Hale, 
that  *  persons  really  innocent  may  be  entangled  under  such  pre- 
sumptions, that  many  times  carry  great  probabilities  of  guilt;'  (2 
Hale,  P.  C.  chap.  39;  see  Bex  v.  Thornton,  Warwick  Autumn  As- 
sizes,  1^17)  wherefore,  as  he  justly  concludes,  'this  kind  of  evi- 
dence must  be  warily  pressed.' 

'It  is  safer  .  .  .  to  err  in  acquitting  than  in  convicting,  and  bet- 
ter that  many  guilty  persons  should  escape  than  that  one  innocent 
man  should  suffer.'  2  Hale,  P.  C.  chap.  30.  Paley  controverts  the 
maxim,  and  urges  that  'he  who  falls  by  a  mistaken  sentence  may 
be  considered  as   falling  for   his  country,  while  he  suffers   under 


CIRCUMSTANTIAL    EVIDENCE.  565 

the  operation  of  those  rules  by  the  general  effect  and  tendency  of 
which  the  welfare  of  the  community  is  maintained  and  upheld." 
6  Mor.  &  Pol.  Phil.  chap.  9.  There  is  no  judicial  enormity  which 
may  not  he  palliated  or  justified  under  color  of  this  execrable 
doctrine,  which  is  calculated  to  confound  all  moral  and  legal  dis- 
tinctions; its  sophistry,  absurdity,  and  injustice  have  been  unan- 
swerably exposed  by  one  of  the  ablest  of  lawyers  and  most  upright 
of  men.  Romilly,  Observation  on  the  Common  Law  of  England, 
72;  Best,  Presumptions,  292.  Justice  never  requires  the  sacrifice 
of  a  victim ;  an  erroneous  sentence  is  calculated  to  produce  incal- 
culable and  irreparable  mischief  to  individuals,  to  destroy  all  con- 
fidence in  the  justice  and  integrity  of  the  tribunals,  and  to  intro- 
duce an  alarming  train  of  social  evils  as  the  inevitable  result." 
Wills,  Circ.  Ev.  chap.  6.  pp.  173-194. 

§  356.  The  Rule  in  Civil  Actions  Having  Criminal  At- 
tributes.— It  is  quite  usual  in  civil  actions,  for  the  court  to  in- 
struct the  jury  that  the  mere  preponderance  of  evidence  is  suffi- 
cient to  justify  a  verdict  for  the  plaintiff  or  defendant  in  the 
litigation  as  the  case  may  be.  But,  in  those  civil  actions  where  a 
criminal  act  is  alleged,  the  attributes  of  a  criminal  act  follow  the 
allegation.  And  the  party  seeking  to  sustain  such  an  averment, 
must  comply  wTith  the  rule  in  criminal  actions,  and  establish  the 
allegation  beyond  a  reasonable  doubt.  Blaeser  v.  Milwaukee 
M.  Mat.  Ins.  Go.  37  Wis.  31,  19  Am.  Rep.  747;  ThurUll  v. 
Beaumont.  1  Bing.  339;  Washington  U.  Ins.  Co.  v.  Wilson,  7 
Wis.  169;  McConnell  v.Delawan  Mut.  S.  Ins.  Co.  18  111.  228; 
Weston  v.  Gravlin,  49  Vt.  507;  Thayer  v.  Boyle,  30  Me.  475; 
Bradish  v.  Bliss,  35  Vt.  326;  Butman  v.  Hobbs,  35  Me.  228; 
Jones  v.  Greaves,  26  Ohio  St.  2,  20  Am.  Rep.  752;  White  v. 
Comstock,  6  Vt.  405;  Barfield  v.  Britt,  47  X.  C.  41,  62  Am. 
Dec.  190;  Brooks  v.  Clayes,  10  Vt.  37;  Kmcade  v.  Bra dshaw,  10 
N.  C.  63;  Biker  v.  Hooper,  35  Vt.  457,  82  Am.  Dec.  646;  Kane 
v.  Hibemia  Ins.  Co.  39  K  J.  L.  697,  23  Am.  Rep.  239;  Freeman 
v.  Freeman,  31  Wis.  235;  FoUom  v.  Brown,  25  N.  H.  122;  Scott 
v.  Home  Ins.  Co.  1  Dill,  105;  Rothschild  v.  American  Cent.  Ins. 
Co.  62  Mo.  356;  MunsonY.  At/mood,  3d  Conn.  102;  Watklns  v. 
Wallace,  19  Mich.  57;  State  v.  Goldsborough,  1  Houst.  Crirn  Rep. 
316;  Burr  v.  Wlllson,  22  Minn.  206;  Schnell  v.  Toomer.  56  Gra. 
168;  Elliott  v.  Van  Buren,  33  Mich.  49,  20  Am.  Rep.  668;  Welch 
v.  Jugenheimer,  56  Iowa,  11,  41  Am.  Hop.  77;  Fills  v.  BuzzeU, 


566  LAW    OF    EVIDENCE    IN    CRIMINAL    CASES. 

60  Me.  209, 11  Am.  ltep.  204;  Barton  v.  Thompson,  46  Iowa,  30, 
26  Am.  Rep.  131;  Knowles  v.  Scribner,  57  Me.  495;  Kendig  v. 
Overhulser,  58  Iowa,  195;  Schmidt  v.  JVew  York  U.  Mut.F.  Ins. 
Co.  1  Gray,  529;  JZtna  Ins.  Co.  v.  Johnson,  11  Bush,  587, 21  Am. 
Rep.  223;  Hoffman  v.  Western  M.  &  F.  Ins.  Co.  1  La.  Ann.  216; 
Sloan  v.  Gilbert,  12  Bush,  51,  23  Am.  Rep.  708;  Wightman  v. 
Western  21.  &  F.  Ins.  Co.  8  Rob.  (La.)  442. 


PART  IV. 

EVIDENCE  FOR  THE  DEFENSE. 

CHAPTER  XLIY. 

EVIDENCE  OF  SELF-DEFENSE. 

§  357.  Preliminary  Remarks. 

358.  What  must  Appear  to  Justify  the  Claim  of  Self-defense. 

359.  Self-defense  Rests  upon  Necessity. 

360.  Extent  of  the  Retreat. 

301.  When  Heroic  Methods  may  he  Employed. 

362.  Threats  Considered  in  Relation  to  Self-defense. 

363.  Threats  Competent  to  Show  Intent. 

364.  The  Rule  in  Alabama. 

365.  Proof  of  Lying  in  Wait  and  Violent  Temper. 

366.  Vacillation  in  the  Authorities. 

367.  Pertinent  Illustration  of  a  Missouri  Case. 

368.  Views  of  tli e  Virginia  Court. 

369.  }\lt<>f  is  Reasonable  Cooling  Time. 

370.  Extended  Collation  of  Authority. 

§  357.  Preliminary  Remarks. — All  civilized  communities  as 
well  as  savage  conditions  recognize  the  principle  of  lawful  resistance; 
but  it  is  the  province  only  of  the  higher  civilization  to  prescribe 
the  limits  within  which  this  insistence  is  to  act,  and  within  which 
when  shown,  it  will  declare  the  exoneration  of  the  party  resisting. 
The  most  expert  publicists  sanction  "lawful  resistance"  to  the 
commission  of  a  crime.  It  is  the  first  duty  of  the  citizen  to  pre- 
vent it,  and  his  only  concern  in  preventing  it  is  to  take  care  that 
the  methods  he  employs  are  lawful. 

Resistance  sufficient  to  prevent  the  crime  may  be  made  by  the 
party  about  to  be  injured  :  (1)  To  prevent  a  crime  against  his 
person;  (2)  To  prevent  an  illegal  attempt  by  force  to  take  or 
injure  property  in  his  lawful   possession.     Any  other  person,  in 

567 


508  LAW    OF    EVIDENCE    IN    CKIMIMAL    CASES. 

aid  or  defense  of  the  person  about  to  be  injured,  may  make 
resistance  sufficient  to  prevent  the  injury.  ]^.  Y.  Code  Criin. 
Proc.  §§80,  81. 

So  by  a  parity  of  reasoning  any  evidence  is  pertinent  in  a 
criminal  prosecution,  that  serves  to  show  that  the  acts  of  the 
parties  were  in  good  faith  designed  to  prevent  a  crime,  and  that 
the  parties  so  acting,  although  so  unfortunate  as  to  inflict  an  in- 
jury persona]  or  otherwise,  were  acting  in  concert  with  the 
officers  of  justice  or  by  their  express  command.  It  should  be 
added  that  in  capital  cases  the  widest  latitude  should  be  given  to 
the  evidence  for  the  defense,  this  always  has  been  the  rnle  from 
the  time  of  Lord  Hale.  2  Hale,  P.  C.  290;  Austin  v.  State,  14 
Ark.  559;  Johnson  v.  State,  14  Ga.  61;  Moore  v.  State,  2  Ohio 
St.  500. 

It  may  be  further  said,  that  when  a  person  is  subjected  to  mal- 
treatment by  another,  he  may  seek  protection  from  the  authorities, 
and  even  that  it  is  his  duty  to  do  so,  as  a  conservator  of  the 
peace,  but  the  omission  to  do  it  does  not  in  any  wise  deprive  him 
of  the  protection  of  the  law,  and  when  assailed,  he  may  defend 
himself  in  the  same  manner,  and  to  the  same  extent,  and  by  the 
same  means,  as  if  he  had  sought  the  protecting  arm  of  the  law. 
The  question  is  not,  in  such  cases,  whether  the  prisoner  has 
sought  that  remedy,  but  whether  he  was  in  imminent  peril,  or 
was  justified  in  believing  himself  to  be,  when  he  did  the  act  com- 
plained of. 

§  35*.  What  must  Appear  to  Justify  the  Claim  of  Self- 
defense. — In  the  majority  of  criminal  prosecutions  for  homicide 
and  assault  and  battery,  self-defense  is  interposed  by  way  of 
justification.  In  all  instances  where  it  is  sought  to  uphold  such  a 
contention  it  must  appear  that  there  was  no  apparent  mode  of 
escape  open  to  the  defendant. 

The  correct  rule  will  find  expression  in  the  following  language: 
"  "Where  a  person  is  unlawfully  assaulted  by  another,  the  party 
assaulted  has  a  right  to  defend  himself  and  to  use  sufficient  force 
to  make  bis  defense  effectual.  But  the  law  never  permits  the 
unnecessary  use  of  force;  therefore,  when  a  man  is  attacked  he 
must  not  use  force  to  defend  himself,  if  he  can  otherwise  protect 
himself.  If  he  lias  other  means  or  ways  of  avoiding  the  assault 
that  appear  to  him  at  the  time  sufficient  and  available  and  that 
are  in  fact  sufficient  and  available  he  must  resort  to  them  and 


EVIDENCE    OF    SELF-DEFENSE.  569 

cannot  justify  the  force  for  his  defense,  or  in  that  case  its  use  can- 
not justify  the  force  for  his  defense,  for  in  that  case  its  use  would 
be  unnecessary."  Harrison  v.  Harrison,  43  Vt.  417;  State  v. 
Sloan,  47  Mo.  604;  State  v.  Collin*,  32  Iowa.  36;  State  v.  Good- 
rich, 19  Vt.  116,  47  Am.  Dec.  676;  Com.  v.  Crawford,  8  Phila. 
490;  State  v.  Wood,  53  Vt.  560;  Com.  v.  Scott,  1  Pa.  L.  T.  N.  S. 
221;  Halloway  v.  Com.  11  Bush,  344;  Kendall  v.  State,  8  Tex. 
App.  569;  State  v.  Dixon,  75  IS".  C.  275;  Presser  v.  State,  77 
Ind.  274;  People  v.  Coughlin,  65  Mich.  704;  *Sta&  v.  Matthi  ws, 
78  N.  C.  523;  Duncan  v.  State,  49  Ark.  543;  Runyan  v.  State, 
57  Ind.  80,  26  Am.  Rep.  52;  People  v.  Gonzales,  71  Cal.  569; 
Fortenberry  v.  State,  55  Miss.  403;  Steinmeyer  v.  People,  95  111. 
383;  State  v.  Parker,  96  Mo.  382;  Sta&  \.  Donnelly,  69  Iowa, 
705,  58  Am.  Rep.  234;  Ponton  v.  Peopte,  114  111.  505;  Sta&  v. 
Partlow,  90  Mo.  608,  55  Am.  Rep.  31. 

A  party  assaulted  is  justified  in  using  such  force  as  is  necessary 
to  repel  an  assailant,  but  no  more;  and  if  unnecessary  force  is 
used  he  becomes  the  assailant.  Gallaght  r  v.  State,  3  Minn.  270; 
People  v.  Williams,  32  Cal.  280;  People  v.  Campbell,  30  Cal.  312; 
Rasberry  v.  /State,  1  Tex.  App.  664;  Sfc  //vr/  v.  State,  1  Ohio  St. 
66;  People  v.  Anderson,  44  Cal.  65.  But  it  is  well  settled  that 
the  degree  of  force  must  not  exceed  the  bounds  of  defense  and 
prevention;  and  this  depends  on  the  circumstances  of  each  ease; 
and  the  respective  condition  of  the  parties.  Gallagher  v.  StaU , 
supra;  State  v.  Quin,  3  Brev.  515;  People  v.  Doe,  1  Mich.  451: 
Patten  v.  People,  18  Mich.  314;  Cotton  v.  State,  31  Miss.  504; 
Jackson  v.  State,  Horrigan  &  T.  Cases  on  Self-defense,  476:. 
Oliver  v.  State,  17  Ala,  587. 

There  must  be  at  least  a  seeming  necessity,  an  actual  necessitv, 
or  a  reasonable  belief  of  such  necessity,  to  ward  off  some  impend- 
ing harm.  Dupree  v.  State,  33  Ala.  380,  73  Am.  Dec.  422:  State 
v.  Benham,  23  Iowa,  154,  92  Am.  Dec.  416;  State  v.  Burke,  30 
Iowa,  331;  Oliver  v.  State,  supra',  Noles  v.  State,  26  Ala.  31,  62 
Am.  Dec.  711;  Reg.  v.  Bull,  9  Car.  &  P.  22;  Dill  v.  Sta& ,  25 
Ala.  15. 

Men,  when  threatened  with  danger,  must  determine  the  neces- 
sity of  resorting  to  self-defense,  and  they  will  not  be  held 
responsible  for  a  mistake  in  the  extent  of  the  actual  danger,  nor 
be  subject  to  the  peril  of  making  that  guilty,  if  appearance  prove 
false,  which  would  be  innocent  if  they   prove  true.      Campbell  v. 


57U  LAW    OF    EVIDENCE    IN    CRIMINAL    CASES. 

People,  16  111.  17,61  Am.  Dec.  49;  Meredith  v.  Com.  18  B.  Mon. 
49;  Shorter  v.  People,  2  N.  Y.  193,  51  Am.  Dec.  286;  Pond  v. 
P<  >ple,  8  Midi.  L60;  State  v.  Sloan,  47  Mo.  604. 

Necessity  is  a  defense  when  the  act  charged  was  done  to  avoid 
irreparable  evil,  from  which  there  was  no  other  adequate  means 
of  escape,  and  the  remedy  was  not  disproportionate  to  the  threat- 
ened evil;  and  the  necessity  must  not  have  been  created  by  the 
fault  of  him  who  pleads  it,  nor  be  the  result  of  his  own  culpa- 
bility, nor  be  rashly  rushed  into.  Harris  v.  Com.  14  Bush,  362; 
Bex  v.  Stratton,  21  How.  St.  Tr.  1045;  State  v.  Starr,  38  Mo. 
270;  Hi unes  v.  State,  17  Ga.  465;  Roach  v.  People,  77  111.  25; 
The  Argo,  1  Gall.  150;  Reg.  v.  Dunnett,  1  Car.  &  K.  425;  The 
Joseph,  12  U.  S.  8  Cranch,  451,  3  L.  ed.  621;  The  New  York,  16 
V.  S.  3  Wheat.  50,  4  L.  ed.  333;  Shorter  v.  People,  2  X.  Y.  193, 
51  Am.  Dec.  286;  Logue  v.  Com.  38  Pa.  265,  80  Am.  Dec.  481; 
v.  Smith,  1<»  Nev.  106;  Vaiden  v.  Com.  12  Gratt.  717; 
State  v.  Underwood,  57  Mo.  40;  State  v.  Linney,  52  Mo.  40; 
State  v.  JVeeley,  20  Iowa,  108;  State  v.  Stanley,  33  Iowa,  526; 
0'//2.  v.  Selfridge,  Horrigan  ifc  T.  Cases  on  Self-defense,  3 ; 
Isaacs  v.  .s'/^A  .  25  Tex.  174.  See  State  v.  Benham,  23  Iowa,  154, 
92  Am.  Dec.  416.  The  authorities  are  believed  to  be  quite  con- 
sistent in  maintaining  this  principle. 

It  is  laid  down  and  believed  to  be  undoubted  law,  that,  in  all 
cases  of  slight  and  insufficient  provocation,  if  it  may  be  reason- 
ably inferred  from  the  weapon  made  use  of,  or  the  manner  of 
using  it.  or  from  any  other  circumstance,  that  the  party  intended 
merely  to  do  some  great  bodily  harm,  such  homicide  will  be  murder 
in  the  second  degree,  in  like  manner  as  if  no  provocation  had 
been  given,  but  not  a  case  of  murder  in  the  first  degree.  Mc- 
Daniel  v.  Com.  77  Ya.  281;  Davis,  Crim.  L.  99. 

Cases  arise,  as  all  agree,  where  a  person  assailed  may,  without 
retreating,  oppose  force  to  force,  even  to  the  death  of  the  assail- 
ant; and  other  cases  arise  in  which  the  accused  cannot  avail  him- 
self of  the  plea  of  self-defense,  without  showing  that  he  retreated 
as  far  as  he  could  with  safety;  and  then  killed  the  assailant  only 
for  the  preservation  of  his  own  life.  Foster,  Crim.  L.  275;  1 
East.  P.O.  277;  4  Bl.  Com.  184. 

Courts  and  text-writers  have  not  always  stated  the  rules  of 
decision  applicable  in  defenses  of  the  kind  in  the  same  forms  of 
expression.      None   more   favorable   to   the   accused  have  been 


EVIDENCE    OK    SELF-DEFENSE.  571 

promulgated  anywhere  than  those  which  were  adopted  seventy 
years  ago,  in  the  trial  of  Selfridge  for  manslaughter.  Pamph. 
Rep.  160  ;  Ilarrigan  &  T.  Cases  on  Self-defense,  1. 
Three  propositions  were  laid  down  in  that  case: 
1.  That  a  man  who,  in  the  lawful  pursuit  of  his  business,  is 
attacked  by  another,  under  circumstances  which  denote  an  inten- 
tion to  take  away  his  life  or  do  him  some  enormous  bodily  harm, 
may  lawfully  kill  the  assailant,  provided  he  use  all  the  means  in 
his  power  otherwise  to  save  his  own  life  or  prevent  the  intended 
harm,  such  as  retreating  as*far  as  he  can,  or  disabling  his  adver- 
sary without  killing  him,  if  it  be  in  his  power.  2.  That  when  the 
attack  upon  him  is  sudden,  tierce  and  violent,  that  a  retreat  would 
not  diminish  but  increase  his  danger,  he  may  instantly  kill  his 
adversary  without  retreating  at  all.  3.  That  when,  from  the 
nature  of  the  attack,  there  is  reasonable  ground  to  believe  that 
there  is  a  design  to  destroy  his  life  or  to  commit  any  felony  upon 
his  person,  the  killing  the  assailant  will  be  excusable  homicide, 
although  it  should  afterwards  appear  that  no  felony  was  intended. 
Learned  jurists  excepted  at  the  time  to  the  third  proposition,  as 
too  favorable  to  the  accused;  but  it  is  safe  to  affirm  that  the  legal 
profession  have  come  to  the  conclusion  that  it  is  sound  law,  in  a 
case  where  it  is  applicable.  Support  to  that  proposition  is  found 
in  numerous  cases  of  high  authority.  Wiggins  v.  Utah,  03  U.  S. 
465,  23  L.  ed.  OIL 

§  350.  Self-defense  Rests  upon  Necessity.—"  Self-defense, 
therefore,  rests  upon  necessity,  actual  or  apparent.  A  common 
assault,  not  actually  or  apparently  endangering  life  or  doing 
great  bodily  harm,  will  not  excuse  a  homicide  in  repelling  it. 
.  The  danger  of  death  or  great  bodily  harm  must  be  real, 
or  honestly  believed  to  be  so,  and  on  reasonable  grounds.  The 
danger  must  be  apparent  and  imminent,  and  existing  at  the  time 
of  the  fatal  injury,  or  honestly  believed  to  be  so,  and  on  reason- 
able grounds.  The  belief  or  apprehension  of  danger  must  be 
founded  on  sufficient  circumstances  to  authorize  the  opinion  that 
the  purpose  to  kill  or  do  great  bodily  harm  then  exists,  and  the 
fear  that  it  will  at  that  time  be  executed."  Bamards  v.  State, 
88  Term.  229. 

When  a  man  is  placed  in  such  a  position  that  a  reasonably  pru- 
dent man,  by  the  circumstances  and  facts  surrounding  him,  would 
have  in  good  faith  a  well-founded  belief  that  his  life  was  in  peril, 


572  LAW    OF    EVIDENCE    IN    CRIMINAL    CASES. 

then  he  would  be  justified  in  using  such  means  in  defense  of  him- 
self, as  might  fairly  appear  to  be  necessary.  White  v.  Territory , 
3  Wash.  fer.  397. 

An  act  done  from  necessity  raises  no  presumption  of  a  criminal 
intent,  but  the  necessity  must  be  actual,  imminent  and  apparent, 
with  no  other  probable  or  possible  means  of  escape.  It  must  be 
great,  and  must  arise  from  imminent  peril  to  life  or  limb.  Olive* 
v.  State,  17  Ala.  587.  See  Dupree  v.  State,  33  Ala.  380,  73  Am. 
Dec.  422;  Kennedy  v.  Com.  14  Bush,  341;  Farris  v.  Com.  14 
Bush,  363;  May  v.  State,  6  Tex.  App.  191;  Blake  v.  State,  3  Tex. 
App.  581;  State  v.  Shippey,  10  Minn.  223,  88  Am.  Dec.  70;  Peo- 
plt  v.  Sullivan,  7  X.  Y.  396;  Com,  v.  Drum,  5S  Pa.  9;  4  BL 
Com.  28;  1  Hale,  P.  C.  43,  52;  1  Bishop,  Crim.  L.  (6th  ed.)  §  346. 

So  in  Logue  v.  Com.  38  Pa.  265,  80  Am.  Dec.  481,  Thompson, 
J.,  quoting  the  language  used  by  Bronson,  J.,  in  the  case  of  Shorter 
v.  People,  2  N.  Y.  193,  51  Am.  Dec.  286,  says: 

"I  take  the  rule  to  be  settled  that  the  killing  of  one  who  is  an 
assailant  must  be  under  a  reasonable  apprehension  of  loss  of  life 
or  great  bodily  harm,  and  the  danger  must  appear  so  imminent 
at  the  moment  of  the  assault  as  to  present  no  alternative  of  escap- 
ing its  consequences  but  by  resistance.  Then  the  killing  may  be 
excusable,  even  if  it  turn  out  afterwards  that  there  was  no  actual 
danger. 

"The  law  of  self-defense  is  a  law  of  necessity,  and  that  necessity 
must  be  real,  or  bear  all  the  semblance  of  reality,  and  appear  to 
admit  of  no  other  alternative,  before  taking  life  will  be  justifiable 
or  excusable.  Whenever  it  is  set  up,  the  case  will  always  call  for 
a  most  careful  and  searching  scrutiny,  to  be  sure  that  it  rests., 
where  alone  it  can  rest,  on  the  ground  of  real  or  apparently  real 
necessity."  Panton  v.  People,  114  111.  505,  5  Am.  Crim.  Eep. 
425,  note. 

§  360.  Extent  of  the  Retreat.— A  man  is  not  required  to  do 

everything  in  his  power  to  avoid  the  necessity  of  slaying  his 
assailant.  "Where  there  is  no  escape,  after  retreating  as  far  as 
possible,  killing  will  be  justifiable;  so  where  retreat  is  impossible 
or  perilous,  or  would  increase  the  danger;  or  where  further  retreat 
is  prevented  by  some  impediment,  or  was  as  far  as  the  fierceness 
of  the  assault  permitted.  But  if  the  assaulted  party  is  in  fault, 
he  is  bound  to  retreat  as  far  as  he  can  safely  do  so;  he  is  required 
to  decline  the  combat  in  good  faith.     Phillips  v.  Com.  2  Duv. 


EVIDENCE    OF    SELF-DEFENSE.  Did 

328;  Bohannon  v.  Com.  8  Bush,  481;  People  v.  Sullivan,  7  N. 
Y.  306;  State  v.  Shippey,  10  Minn.  223,  88  Am.  Dec.  70;  Logue 
v.  Com.  38  Pa.  265,  80  Am.  Dec.  481;  Meredith  v.  Com.  18  13. 
Mon.  49;  Reg.  v.  aSW^A,  8  Car.  &  P.  160;  Creek  v.  tftate,  24  Ind. 
151;  Tweedy  v.  State,  5  Iowa,  433;  Com.  v.  Selfridge,  Harrigan 
<fe  T.  Cases  on  Self-defense,  1;  Vaiden  v.  Com.  12  Graft.  717; 
/•.>"■/„  v.  .V.'A\  29  Ohio  St.  186;  Davison  v.  J>pfe,  90  111.  221; 
tftate  v.  ///y^/,  49  K  C.  216;  £tafc  v.  /////,  20  K  C.  491;  State 
v.  CAflOT*,  80  K  C.  353. 

He  is  not  obliged  to  retreat  or  to  go  to  the  wall  from  an  assail- 
ant armed  with  a  deadly  weapon;  and  if  he  is  driven  to  the  wall 
.so  that  he  must  he  killed  or  sustain  great  bodily  harm,  and  there- 
fore kills  his  assailant,  it  is  excusable  homicide.  State  v.  Ingold, 
Phillips  v.  Com.  and  Tweedy  v.  State,  supra,'  Smalts  v.  Com.  3 
Bush,  32;  Young  v.  Com.  6  Bush,  312;  Carieo  v.  Com.  7  Bush, 
124.  But  see  Bohannon  v.  Com.  supra/  ( 'arroll  v.  State,  23  Ala. 
2S;  Pond  v.  People,  8  Mich.  150;  1  East,  P.  C.  271;  Destj,  Am. 
Crim.  L.  31. 

And  if  he  uses  all  the  means  in  his  power  to  escape,  even  kill- 
ing in  self-defense  is  lawful.     Com.  v.  Selfridge,  Horrigan  &  T. 
Cases  on  Self-defense,  1;  People  v.  Doe,  1  Mich.  451;  People  v 
Sullivan,  State  v.  Shippey,  and  Bohannon  v.  Com.  supra. 

In  1803,  Mr.  East  published  his  excellent  Treatise  on  the  Pleas 
of  the  Crown,  and  on  page  271,  says,  in  speaking  of  homicide  from 
necessity:  "Herein  may  be  considered:  1.  What  sort  of  attack 
it  is  lawful  and  justifiable  to  resist,  even  by  the  death  of  the 
assailant,  and  where  the  party  is  without  blame.  2.  Where  such 
killing  is  only  excusable,  or  even  culpable,  and  the  party  is  not 
free  from  blame,"  etc.  In  relation  to  the  first  sort,  the  author 
says:  "1.  A  man  may  repel  force  by  force,  in  defense  of  his  per- 
son, habitation  or  property,  against  one  who  manifestly  intends 
and  endeavors,  by  violence  or  surprise,  to  commit  a  known  felony, 
such  as  murder,  rape,  robbery,  arson,  burglary  and  the  like,  upon 
either.  In  these  cases  he  is  not  obliged  to  retreat,  but  may  pur- 
sue his  adversary  until  he  has  secured  him  from  all  danger;  and, 
if  he  kill  him  in  so  doing,  it  is  called  justifiable  self-defense;  as, 
on  the  other  hand,  the  killing,  by  such  felon,  of  any  person  so 
lawfully  defending  himself,  will  be  murder.  But  a  bare  fear  of 
any  of  these  offenses,  however  well  grounded,  as  that  another  lies 
in  wait  to  take  away  the  party's  lite,  unaccompanied  with  any 


574  LAW    OF    EVIDENCE    IN    CKIMINAL    CASES. 

overt  act  indicative  of  such  an  intention,  will  not  warrant  in  kill- 
ing that  other  by  way  of  prevention.  There  must  be  an  actual 
danger  at  the  time."     Erwvn  v.  State,  29  Ohio  St.  186. 

A  very  brief  examination  of  the  American  authorities  makes  it 
evident  that  the  doctrine,  as  to  the  duty  of  a  person  assailed  to 
retreat  as  far  as  he  can,  before  he  is  justified  in  repelling  force  by 
force,  has  been  greatly  modified  in  this  country,  and  has  with  u& 
a  much  narrower  application  than  formerly.  Indeed,  the  tendency 
of  the  American  mind  seems  to  be  very  strongly  against  the 
enforcement  of  any  rule  which  requires  a  person  to  flee  when 
assailed,  to  avoid  chastisement  or  even  to  save  human  life,  and 
that  tendency  is  well  illustrated  by  the  recent  decisions  of  our 
courts,  bearing  on  a  general  subject  of  the  right  of  self-defense. 
Eunyan  v.  State,  57  Ind.  80,  26  Am.  Rep.  52.  This  principle 
has  been  carried  to  its  full  extent  in  several  of  our  decisions  and 
has  been  vindicated  in  many  others  that  are  not  reported. 

§  361.  When  Heroic  Methods  may  be  Employed. — Respect- 
able authority  exists  in  favor  of  the  proposition,  that  where  the 
evidence  clearly  discloses  the  presence  or  imminency  of  great 
danger,  resort  may  be  had  to  heroic  methods,  even  the  taking  of 
life.  In  1  Rutherforth's  Institutes  of  Natural  Law,  chap.  16,  §  5, 
it  is  said,  that  the  law  of  nature  "cannot  be  supposed  to  oblige  a 
man  to  expose  his  life  to  such  danger  as  may  be  guarded  against; 
and  to  wait  till  the  danger  is  just  coming  upon  him,  before  it 
allows  him  to  secure  himself."  Also  the  following  passage  from 
the  same  section  :  "  I  see  not,  therefore,  any  want  of  benevolence 
which  can  be  reasonably  charged  upon  a  man  in  these  circum- 
stances, if  he  takes  the  most  obvious  way  of  preserving  himself,, 
though  perhaps  some  other  method  might  have  been  found  out, 
which  would  have  preserved  him  as  effectually,  and  produced  less 
hurt  to  the  aggressor,  if  he  had  been  calm  enough,  and  had  been 
allowed  time  enough  to  deliberate  about  it." 

He  also  cited  Grainger  v.  State,  5  Yerg.  459,  to  the  effect  that, 
"  if  a  man,  though  in  no  great  danger  of  serious  bodily  harm, 
through  fear,  alarm  or  cowardice,  kill  another,  under  the  impres- 
sion that  great  bodily  injury  is  about  to  be  inflicted  on  him,  it  is 
neither  murder  or  manslaughter,  but  self-defense."  See  also  Tht, 
Marianna  Flora,  24  U.  S.  11  Wheat.  51,  6  L.  ed.  417;  The 
Louis,  '1  Dod.  Adm.  264;  13  Bacon's  Works,  by  Montagu  (Lon- 
don ed.  1831)  160;  4  Bl.  Com.  186. 


EVIDENCE    OF    SELF-DEFENCE.  575 

§  362.  Threats  Considered  in  Relation  to  Self- Defense.— 

Threats  of  violence  by  the  deceased  against  the  accused,  though 
not  communicated  to  the  latter,  are  admissible  as  evidence  where 
there  is  any  doubt  as  to  who  began  the  encounter.  They  tend  to 
show  that  it  was  the  intention  of  the  deceased  at  the  time  of  the 
meeting  to  attack  the  accused,  and  hence  tend  to  prove  that  the 
former  brought  on  the  conflict,  and  are  relevant  evidence.  If  all 
the  evidence  is  to  the  effect  that  the  defendant  was  the  aggressor, 
it  is  not  admissible.  Wilson  v.  State  (Fla.)  17  L.  R.  A.  05-f,  and 
note,  reproduced  by  permission. 

Note. — Ecidence  in  a  criminal  case  of  threats  of  accused,  or  of  person  injuria 

or  killed. 
1.   Threats  by  the  defendant. 

It  is  competent  to  show  that  the  prisoner  had  made  previous  threats  to  kill 
his  victim.  Pullieim  v.  State,  88  Ala.  1;  Beibcock  v." People,  13  Colo.  515;  Rains 
v.  State,  88  Ala.  91;  Hodge  v.  State,  26  Fla.  11;  State  v.  Elkins,  101  Mo.  344: 
People  v.  Jones,  99  N.  Y.  667;  State  v.  Mr  Kinney  (Kan.)  March  6,  1884;  Stale  v.. 
McCahill,  72  Iowa,  111;  Howard  v.  State,  25  Tex.  App.  •  ;>•!:  Schoolcraft  v. 
People,  5  West.  Rep.  474,  117  111.  271;  Griffin  v.  State,  90  Ala.  596;  State  v. 
Dickson,  78  Mo.  438. 

Threats  by  the  defendant  in  a  trial  for  murder  are  admissible  to  show  his  animus 
toward  the  deceased.  White  v.  Territory,  3  Wash.  Ter.  397;  Peoples.  Brown,  76 
Cal.  573;  Cribbs  v.  State,  86  Ala.  613;  State  v.  Glahn,  97  Mo.  679;  Nicholas.  Com. 
11  Bush,  575;  Casat  v.  State,  40  Ark.  511;  State  v.  Dickman,  11  Mo.  App.  538. 

This  although  he  was  drunk  at  the  time  of  making  the  threats.  Smith  v. 
Com.  (Ky.)  June  2,  1887. 

On  the  trial  of  a  man  for  the  murder  of  his  wife,  his  threats  to  shoot  or  kill 
the  deceased  are  admissible.     People  v.  Simpson,  48  Mich.  474. 

In  Goodwin  v.  State,  96  Ind.  550,  4  Crim.  L.  Mag.  565,  threats  of  the  accused 
to  shoot  deceased,  made  thirty  years  before  the  homicide,  were  admitted,  there 
being  other  evidence  of  long  continued  hostility.  Elliott,  J.,  said:  "Threats 
against  life  are  always  admissible  against  an  accused,  but  their  remoteness 
from  the  time  of  the  homicide  is  a  circumstance  to  be  considered  in  determin- 
ing the  weight  and  effect  to  be  assigned  them." 

On  a  trial  for  assault  with  intent  to  kill,  it  appearing  that  the  defendant  and 
the  woman  injured  had  lived  in  adultery  for  some  time  and  that  she  had  left 
him  and  refused  to  return,  and  his  threats  in  consequence  of  her  refusal  to  do 
80,  is  competent  to  show  motive.      Walker  v.  Slate,  85  Ala.  7. 

On  a  trial  for  assault  proof  is  admissible  of  threats  made  a  few  hours  before. 
State  v.  Henn,  39  Minn.  476. 

The  fact  of  a  previous  difficulty  between  defendant  and  a  person  assaulted 
by  him  and  his  threats  against  such  person  may  be  proved  in  the  prosecution 
for  assault  with  intent  to  murder,  to  show  malice  in  motive.  Lawrence  v. 
State,  84  Ala.  424. 

a.  Subsequent  threats. 

A  declaration  by  the  prisoner  who  returned  to  the  place  of  killing  half  an 
hour  after  the  fatal  blow  was  struck,  "  that  he  had  come  to  kill  "  the  deceased 


576  LAW    OF   EVIDENCE    IN    CRIMINAL   CASES. 

may  be  admitted  to  show  his  hostile  feeling.     McManus  v.  State,  36  Ala.  285. 

Where  the  defendant,  in  the  court-house,  after  the  indictment  was  found, 
and  about  two  weeks  before  the  trial,  said  to  the  injured  party,  "  I'll  get  you 
yet,"  this  was  held  admissible  as  referring  to  the  past  act  and  including  an 
implied  admission  of  the  previous  attempt.      Walker  v.  State,  85  Ala.  7. 

Evidence  of  what  preceded  and  followed  between  the  parties  is  admissible  to 
show  that  the  language  used  in  a  letter  imported  a  threat  of  the  character 
mentioned  in  N.  Y.  Penal  Code,  §  538.     People  v.  Gillian,  50  Hun,  35. 

Evidence  of  threats  to  do  the  plaintiff  bodily  harm,  made  by  the  defendant 
before  an  alleged  assault,  or  so  immediately  after  it  as  to  constitute  part  of  the 
transaction,  is  competent.     Caverno  v.  Jones,  61  N.  H.  653. 

2.   Threats  by  the  deceased. 
a.  Communicated  threats. 

Threats  made  by  deceased  a  short  time  before  commission  of  the  homicide 
indicating  an  angry  and  revengeful  spirit  toward  prisoner  and  a  determination 
to  do  violence  to  his  person,  communicated  to  prisoner,  are  admissible.  Dupree 
v.  State,  33  Ala.  380,  73  Am.  Dec.  422;  Powell  v.  Slate,  52  Ala.  1. 

An  isolated  complete  sentence  containing  a  threat  by  the  accused  against 
deceased  is  admissible  on  a  trial  for  murder,  although  the  witness  did  not  hear 
and  could  not  relate  the  whole  of  the  conversation.  State  v.  Oliver,  43  La. 
Ann.  1003. 

It  is  competent  for  the  prosecution  in  a  murder  trial  to  prove  a  former 
difficulty  and  any  threats  made  by  defendant  in  connection  therewith.  Dunn 
v.  State,  2  Ark.  229,  35  Am.  Dec.  54. 

This  although  it  is  not  competent  to  prove  the  particulars  of  such  difficulty. 
Stitfrv.  State,  91  Ala.  10,  24  Am.  St.  Rep.  853. 

Evidence  of  communicated  threats  is  admissible  to  shed  light  upon  the 
mental  attitude  of  the  prisoner  towards  the  deceased  when  the  homicide 
occurred.     State  v.  Evans,  33  W.  Va.  417;   Wood  v.  State,  92  Ind.  269. 

Testimony  on  a  murder  trial,  as  to  a  meeting  and  altercation  between  deceased 
and  defendant  on  the  evening  of  the  killing,  in  which  deceased  made  threats 
against  defendant,  is  admissible  as  tending  to  throw  light  upon  the  feeling 
existing  between  them.     While  v.  State,  30  Tex.  App.  652. 

Naked  threats  unaccompanied  with  personal  violence  are  admissible  to  show 
reasonableness  of  prisoner's  fears  provided  a  knowledge  of  threats  is  brought 
home  to  him.  Pitman  v.  State,  22  Ark.  354;  Howell  v.  State,  5  Ga.  48;  Monroe 
v.  State,  5  Ga.  85. 

Evidence  of  threats  by  deceased  against  defendant,  who  killed  him,  though 
not  affording  a  justification,  is  admissible,  as  it  may  operate  in  mitigation  of 
the  offense.     Howard  v.  State,  23  Tex.  App.  265. 

A  declaration  of  deceased  in  the  nature  of  a  threat  against  defendant,  made 
a  few  days  before  his  death,  is  competent  evidence  on  the  murder  trial  as  a 
circumstance  tending  to  show  that  the  deceased  was  the  aggressor.  Brown  v. 
State,  55  Ark.  593. 

Evidence  of  threats  made  by  the  deceased  some  days  prior  to  the  killing,  at 
which  time  the  accused  was  in  fear  of  the  deceased,  was  held  admissible, 
where  at  the  time  of  the  killing  the  defendant  was  without  fault  and  was  in 
imminent  danger  of  an  attack,  to  show  the  purposes  and  motives  of  the  de- 
ceased in  making  the  attack.     Slate  v.  Dodson,  4  Or.  64. 


EVIDENCE    OF    SELF-DEFENSE.  577 

la  Hudgins  v.  State,  2  Kelly  (Ga.)  181,  a  son  of  the  accused  testified  that  he 
said  to  the  latter:  "  Yonder  comes  John  Anderson  (deceased)  and  he  will  kill 
you."  Lumpkin,  J.,  said:  "Had  young  Hudgins  informed  his  father  that 
Anderson  was  advancing  in  great  haste,  apparently  much  enraged,  that  he  was 
using  threats  of  personal  violence,  armed  with  a  weapon,  and  the  like,  all  this 
would  he  admissible  to  satisfy  the  jury  that  the  homicide  was  in  self-defense. 
The  opinion  of  the  witness  is  a  very  different  thing."  See  also  State  v.  Goodrich, 
19  Vt.  117,  .47  Am.  Dec.  676. 

(1.)  Overt  act  of  hostile  demonstrations. 

Threats  of  personal  injuries,  or  even  against  the  life  of  another,  will  not 
justify  killing  the  one  making  them  when  he  is  doing  nothing  to  carry  them 
into  effect.  Gilmore  v.  People,  13  West.  Rep.  509,  124  111.  380;  People  v.  lams, 
■57  Cal.  115. 

Proof  of  threats  by  the  deceased  will  have  no  effect  in  extenuating  the  crime 
when  he  was  at  the  time  of  the  killing  making  no  effort  to  execute  them.  State 
v.  Harris,  59  Mo.  550. 

Threats  though  communicated  are  not  admissible  when  the  killing  was  not 
done  in  self-defense.  Pritchett  v.  State,  22  Ala.  39,  58  Am.  Dec.  250;  Green  v. 
State,  69  Ala.  6. 

Evidence  that  deceased  carried  weapons  and  threatened  to  use  them  was 
excluded  where  there  was  no  evidence  that  the  prisoner  committed  the  homicide 
in  self-defense.     People  v.  Garbutt,  17  Mich.  9. 

The  Criminal  Code  of  Texas  provides  that  "  where  a  defendant  accused  of 
murder  seeks  to  justify  himself  on  the  ground  of  threats  made  against  his  own 
life,  he  may  be  permitted  to  introduce  evidence  of  threats  made,  but  the  same 
shall  not  be  regarded  as  affording  a  justification  of  the  offense  unless  it  be 
shown  that  at  the  time  of  the  homicide  the  person  killed,  by  some  act  then 
done,  manifested  an  intention  to  execute  the  threats  so  made."  Paschal,  Dig. 
art.  2270;  Peck  v.  State,  5  Tex.  App.  611. 

Evidence  of  threats  is  admissible  when  they  were  communicated  to  the 
accused  previous  to  the  killing,  and  when  it  appears  that  at  the  time  of  the 
killing  the  deceased  made  overt  acts,  indicative  of  a  present  intention  to  exe- 
cute the  threats.  Johnson  v.  State,  6G  Miss.  189;  State  v.  Stewart,  9  Nev.  130; 
State  v.  Hall,  9  Nev.  58;  State  v.  Harrington,  12  Nev.  125;  People  v.  Scoggim, 
37  Cal.  683;  State  v.  Harrod,  102  Mo.  590. 

When  deceased  has  made  threats  against  prisoner  which  heat  the  time  of  the 
killing  shows  an  intention  of  executing  evidence  of  such  threats  should  be 
submitted  to  the  jury  to  be  considered  by  them  in  determining  whether  or  not 
"adequate  cause"  for  the  homicide  existed.  Alexander  v.  State,  25  Tex.  App. 
260,  8  Am.  St.  Rep.  438. 

Threats  of  the  deceased  are  admissible  on  a  trial  for  murder  although  not 
part  of  the  res  gestm  and  there  is  no  doubt  as  to  who  began  the  difficulty,  where 
there  is  the  slightest  evidence  tending  to  show  the  hostile  demonstration  by  him 
which  may  reasonably  be  regarded  as  placing  the  accused  in  apparent  immi- 
nent danger  of  life  or  of  great  bodily  harm.     Garner  v.  State,  28  Fla.  113. 

But  not  if  the  homicide  was  committed  in  cold  blood  upon  a  person  unarmed 
and  retreating.     Thomason  v.  Territory,  4  N.  M.  150. 

Or  if  the  homicide  was  the  result  of  the  defendant's  invitation  to  fight.  State 
y.  Wilson,  43  La.  Ann.  840. 

37 


578  LAW    OF    EVIDENCE    IN    CRIMINAL   CASES. 

Or  if  the  defendant  in  any  way  provoked  the  occasion  which  produced  the 
killing.     Levy  v.  State,  28  Tex.  App.  203,  19  Am.  St.  Rep.  826. 

Evidence  of  prior  threats  is  not  admissible  in  support  of  a  plea  of  self-defense 
in  homicide,  unless  they  have  been  followed  by  an  overt  act  or  hostile  demon- 
stration at  the  time  of  killing  of  such  a  character  as  to  indicate  that  the 
deceased  was  then  and  there  about  to  execute  such  threats,  and  to  justify 
defendant  in  believing  that  his  life  was  in  such  apparently  imminent  danger  as 
to  authorize  him  to  take  his  adversary's.  State  v.  Vosgrove,  42  La.  Ann.  753; 
State  v.  Guillory,  44  La.  Ann.  — ;  Smith  v.  State,  25  Fla.  517;  People  v.  Haiti- 
day,  5  Utah,  467;  Ilinson  v.  State,  66  Miss.  532;  State  v.  Brooks,  39  La.  Ann. 
817;  State  v.  Hays,  23  Mo.  287;  Slate  v.  Demareste,  41  La.  A.nn.  617;  Holly  v. 
State,  55  Miss.  424;  Nash  v.  State,  2  Tex.  App.  362;  Territory  v.  Campbell,  9 
Mont.  16. 

Evidence  of  threats  by  the  deceased  the  day  previous  to  the  killing,  to  the 
effect  that  he  and  another  would  come  at  night  and  pull  the  house  down,  was 
allowed  on  a  trial  for  murder.     Meade's  &  Belt's  Case,  1  Lew.  C.  C.  184. 

Threats  of  rioters  that  they  would  return  another  night  soon  after,  to  the 
defendant's  house  and  break  in  if  they  were  not  admitted  were  allowed  in  evi- 
dence to  establish  a  reasonable  ground  of  the  prisoner's  apprehension.  People 
v.  Rector,  19  Wend.  567. 

Evidence  is  competent  on  a  trial  for  murder,  of  threats  by  the  deceased  to- 
take  the  life  of  a  person  who  was  in  a  house  which  the  former  was  violently 
attempting  to  enter  at  the  time  he  was  killed.     King  v.  State,  55  Ark.  604. 

On  a  trial  of  two  persons  jointly  indicted  for  murder,  threats  against 
deceased,  made  by  one  of  them  in  the  absence  of  the  other,  are  admissible  but 
not  to  be  considered  so  far  as  the  other  is  concerned.  State  v.  McKinzie,  102 
Mo.  620. 

And  the  fact  that  the  testimony  in  a  murder  trial  in  regard  to  an  overt  act  of 
violence  by  the  deceased  is  conflicting,  is  no  ground  for  excluding  evidence  of 
threats  made  by  him.     Garner  v.  State,  28  Fla.  113. 

b.    Uncommunicated  threats. 

Concerning  the  admission  of  uncommunicated  threats  in  cases  of  homicide 
there  has  been  much  conflict  of  authority.  In  People  v.  Arnold,  15  Cal.  476,  it 
was  said  that  threats  to  be  admissible  for  any  cause  must  be  shown  to  have 
been  communicated  to  the  accused.  See  also  Powell  v.  State,  19  Ala.  577;  Ed- 
gar v.  State,  43  Ala.  48;  Burns  v.  State,  49  Ala,  370;  Rogers  v.  State,  62  Ala. 
170;  State  v.  Jackson,  17  Mo.  544,  59  Am.  Dec.  281. 

In  Lingo  v.  State,  29  Ga.  470,  it  was  held  that  uncommunicated  threats  of 
the  deceased  are  inadmissible  where  it  is  shown  that  at  the  time  of  the  killing 
he  acted  only  in  self-defense. 

Threats  of  personal  injury  made  by  deceased  against  prisoner  half  an  hour 
before  the  shooting,  not  communicated  to  the  latter,  could  not  have  influenced 
the  latter  and  were  therefore  immaterial.     State  v.  Maloy,  44  Iowa,  104. 

The  admissibility  of  antecedent  threats  by  the  deceased  depends  upon  the 
fact  of  their  having  been  communicated  to  the  accused  as  a  condition  prece- 
dent; and  the  court  may  well  refuse  to  admit  them  until  this  necessary  founda- 
tion is  laid,  just  as  the  admission  of  the  testimony  of  deceased  or  absent  wit- 
nesses is  refused  until  the  death  or  absence  is  proved.  State  v.  McCoy,  29  La. 
Ann.  593;  State  v.  Gregor,  21  La.  Ann.  473. 


EVIDENCE    OF    SELF-DEFENSE.  579 

Newly  discovered  evidence  to  the  effect  that  deceased  had  a  few  days  before 
the  killing  said  that  he  intended  to  kill  the  prisoner,  will  not  authorize  a  new 
trial  when  defendant  did  not  know  of  the  statement  at  the  time  of  the  killing 
and  could  not  have  done  the  killing  on  account  of  fears  induced  through  a 
knowledge  of  it.     Peterson  v.  State,  50  Ga.  142;  Carr  v.  State,  14  Ga.  358. 

Formerly  uncommuuicated  threats,  made  by  the  deceased  against  the  accused, 
were  not  competent  evidence  for  the  latter  unless  they  constituted  a  part  of  the 
res  gesta.     Carroll  v.  State,  23  Ala.  28. 

§  343.  Threats  Competent  to  Show  Intent. 

But  the  more  modern  cases  favor  the  admission  of  such  evidence  in  the  fol- 
lowing cases: 

(a)  To  sliaw  who  began  the  affray. 

""Where  A  is  charged  with  a  murderous  assault  upon  B,  or  with  killing  B 
(the  plea  of  self-defense  not  being  set  up)  remarks  or  threats  affecting  A,  made 
by  B  to  a  third  party  before  the  assault,  are  not  admissible  in  A's  behalf;  espe- 
cially when  it  does  not  appear  at  what  time  they  are  communicated  to  him. 
Yet,  if  the  question  is  whether  the  deceased  was  the  assailant,  the  fact  that  he 
declared  beforehand  that  he  meant  to  attack  the  defendant  is  material;  nor,  on 
this  issue,  is  it  necessary  that  the  defendant  should  be  proved  to  have  had 
notice  of  such  threats."  1  Whart.  Crim.  L.  §  642;  Hart  v.  Com.  85  Ky.  77, 
7  Am.  St.  Rep.  576. 

"Where  the  question  is  as  to  who  began  the  difficulty  uncommunicated  threats 
are  admissible.  Sparks  v.  Com.  89  Ky.  644;  Levy  v.  State,  28  Tex.  App.  203;  State 
v.  Alexander,  66  Mo.  148;  State  v.  Lee,  66  Mo.  165;  Roberts  v.  State,  68  Ala.  156. 

In  Little  v.  State,  6  Baxt.  493  (approved  in  Potter  v.  State,  85  Tenn.  88)  Mc- 
Farland,  J.,  said:  "In  all  cases  where  the  acts  of  the  deceased  are  of  a  doubt- 
ful character,  then  evidence  which  may  tend  to  show  that  he  sought  the  meet- 
ing, or  began  or  provoked  the  combat,  is  admissible,  and,  in  this  view  previous 
threats  made  by  the  deceased,  though  not  communicated  to  the  prisoner,  may 
yet  tend  to  show  the  animus  of  the  deceased,  and  to  illustrate  his  conduct  and 
motives,  and  in  some  cases  might  be  important,  in  the  absence  of  more  direct 
evidence,  to  show  which  party  began  or  provoked  the  fight." 

"When  a  fatal  encounter  occurs  and  it  is  doubtful  which  of  the  two  com- 
menced the  affray,  the  declaration  of  the  prisoner  at  the  time  of  the  purchase 
of  a  pistol  that  he  meant  to  use  it  on  the  deceased  is  admissible  for  the  consid- 
eration of  the  jury.     People  v.  Arnold,  15  Cal.  476. 

In  this  case  (cited  with  approval  in  People  v.  Scoggins,  37  Cal.  670)  Mr.  Jus- 
tice Baldwin  in  delivering  the  opinion  of  the  court,  said:  "It  shows  in  other 
words  the  purpose  for  which  the  weapon  was  procured.  This  leads  us  to  the 
inquiry  whether  the  fact  that  A  procures  a  weapon  for  a  particular  purpose 
conduces  at  all  to  show  in  a  question  of  conflicting  proofs  as  to  the  manner  in 
which  he  used  it  what  that  manner  was.  We  apprehend  that  if  a  man  goes 
into  a  house,  borrows  a  gun,  goes  out  with  it,  saying  that  he  means  to  use  it  on 
another,  and  an  encounter  happens  between  him  and  that  other,  and  the  wit- 
nesses who  see  the  difficulty  differ,  or  the  circumstances  are  equivocal  as  to 
which  one  of  the  two  commenced  the  affray,  some  light  might  be  thrown  upon 
this  question  conducing  to  or  toward  its  solution  by  the  proof  of  these  facts 
as  to  A's  procuring  it,  and  his  motives  in  doing  so.  The  jury  might  possibly 
with  some  reason,  conclude  that  as  the  weapon  was  procured  for  this  purpose 
of  assault  on  another,  that  purpose  was  fulfilled;   that  the  assault  in  other 


560  LAW    OF    EVIDENCE    IN    CRIMINAL    CASES. 

words  was  made  in  pursuance  of  the  intended  purpose  when  the  weapon  was 
procured,  and  especially  if  other  facts  in  corroboration  of  this  conclusion 
existed.  It  is  true  there  would  be  nothing  conclusive  in  this.  But  the  fact  of 
the  conclusiveness  of  this  proof  to  establish  the  proposition  which  it  is  intro- 
duced to  prove  is  not  the  decisive  question.  The  question  is,  whether  this  item 
of  fact  be  a  matter  proper  to  be  considered  by  the  jury  in  arriving  at  their  con- 
clusion upon  this  mooted  point.  And  we  have  no  doubt  that  it  is;  that  it  may 
enter  into  the  deliberations  of  the  jury  with  all  the  other  facts  as  a  matter  to  be 
weighed  by  them  with  the  rest  of  the  proofs." 

In  a  prosecution  for  an  assault,  where  there  is  doubt  as  to  which  is  the 
aggressor,  uncommuuicated  threats  by  one  party,  preceding  the  affray,  are 
admissible  to  show  his  animus  towards  the  other  party,  as  tending  to  show  that 
he  was  the  aggressor.     State  v.  Bailey,  13  West.  Rep.  620,  94  Mo.  311. 

(b)  To  corroborate  evidence  of  communicated  threats. 

When  it  has  been  shown  on  a  trial  for  murder  that  a  short  time  before  the 
killing  the  deceased  made  threats  against  the  prisoner  which  were  communi- 
cated to  him  it  is  error  to  exclude  proof  of  uncommunicated  threats  made  by 
deceased  only  a  few  days  previous  to  the  killing.  Cornelius  v.  Com.  15  B.  Mon. 
539. 

Where  communicated  threats  followed  by  a  subsequent  homicide  have  been 
proved,  evidence  of  other  threats  made  between  the  communicated  ones  and 
the  assault  may  be  received  as  corroborative  and  explanatory.  State  v.  Williams, 
40  La.  Ann.  168;  Levy  v.  State,  28  Tex.  App.  203;  Holler  v.  State,  37  Ind.  57, 
10  Am.  Rep.  74;  Roberts  v.  State,  68  Ala.  156. 

Where  it  was  shown  that  certain  threats,  communicated  to  the  prisoner,  had 
been  made  by  the  deceased,  and  that  deceased  had  followed  the  prisoner  to  a 
house,  and  that  in  the  fatal  encounter  a  rock  had  been  used  by  the  deceased, 
uncommunicated  threats  were  held  admissible  (1)  to  corroborate  the  evidence 
of  the  threats  already  made;  (2)  to  show  the  state  of  feeling  of  the  deceased 
and  the  quo  animo  with  which  he  had  pursued  his  enemy;  (3)  to  fix  the  owner- 
ship of  the  rock.     State  v.  Turpin,  77  N.  C.  473,  24  Am.  Rep.  455. 

(c)  To  show  the  altitude  of  the  deceased. 

Uncommunicated  threats  are  not  admissible  when,  at  the  time  of  the  conflict, 
the  deceased  was  making  no  hostile  demonstration.  Newcomb  v.  State,  37  Miss. 
383;  State  v.  Scott,  26  N.  C.  415,  42  Am.  Dec.  148;  State  v.  Taylor,  64  Mo.  358. 

But  evidence  of  previous  uncommunicated  threats  made  by  the  injured  party 
against  the  accused  is  admissible  on  a  trial  for  assault  with  intent  to  kill  where 
the  circumstances  in  evidence  properly  raise  a  case  of  self-defense.  Bell  v. 
State,  66  Miss.  192;  Roberts  v.  State,  68  Ala.  156. 

The  rules  laid  down  in  Roberts  v.  State,  supra,  were  said  to  be  in  full  accord 

with  the  true  doctrine  as  established  by  the  more  recent  cases  of  the  highest 

courts  in  this  country,  although  not  in  harmony  with  the  former  decisions  of 

this  court.     See  Powell  v.  State,  Edgar  v.  State,  Burns  v.  State,  and  Rogers  v. 

.  ra. 

And  "where  the  question  is  as  to  what  was  deceased's  attitude  at  the  time  of 
the  fatal  encounter,  recent  threats  may  become  relevant  to  show  that  this  atti- 
tude was  one  hostile  to  the  defendant  even  though  such  threats  were  not  com- 
municated to  defendant.  The  evidence  is  not  relevant  to  show  the  quo  animo 
of  the  defendant,  but  it  may  be  relevant  to  show  that  at  the  time  of  the  meeting 


EVIDENCE    OK    SELF-DEFENSE.  581 

the  deceased  was  seeking  the  defendant's  life."  Whart.  Crim.  L.  1027,  affirmed 
in  Davidson  v.  People,  4  Colo.  145;  Wiggins  v.  Utah,  93  U.  S.  467,  23  L.  ed.  942. 
See  also  State  v.  Evans,  33  W.  Va.  417. 

Where  there  was  a  feud  of  several  years'  standing  between  the  deceased  and 
the  prisoner,  and  the  deceased  had  repeatedly  made  threats  to  take  the  life  of 
the  prisoner,  which  had  been  communicated  to  the  latter,  an  uncommunicated 
threat  made  just  prior  to  the  fatal  encounter  should  have  been  admitted  in  evi- 
dence to  show  the  jury  the  attitude  of  the  deceased  at  the  time.  Davidson  v. 
People,  4  Colo.  145. 

A  conversation  held  two  days  before  the  killing  in  which  deceased  made 
threats  against  prisoner  was  held  admissible  as  a  substantive  fact  to  show  the 
evil  intent  with  which  deceased  went  to  the  place  where  the  accused  was,  to 
throw  light  upon  the  conduct  of  the  deceased  up  to  the  time  of  the  killing  and 
to  illustrate  the  transaction.     Keener  v.  State,  18  Ga.  194,  63  Am.  Dec.  269. 

In  this  case  Lumpkin,  J.,  said:  "The  true  distinction  we  apprehend,  as  to 
the  admissibility  of  evidence  of  threats,  and  one  apparently  overlooked  in 
many  of  the  cases,  is  this:  when  sought  to  be  introduced  by  the  defendant  as  a 
justification  for  the  homicide,  and  without  any  overt  act,  he  must  show  that 
they  have  been  communicated;  otherwise  they  can  furnish  no  excuse  for  his 
conduct;  but  when  offered  to  prove  a  substantive  fact,  namely,  the  state  of 
feeling  entertained  by  deceased  toward  the  accused,  it  is  competent  testimony 
whether  a  knowledge  of  the  threats  be  brought  home  to  the  defendant  or  not." 

In  Peterson  v.  State,  50  Ga.  142,  it  was  said  that  the  Keener  case  carries  the 
question  of  the  admissibility  of  much  testimony  to  the  point  of  extreme  liberal- 
ity, and  the  court  declared  that  it  would  not  go  any  further  in  the  direction  of 
that  case  than  its  term  required.     See  also  Eoyes'  Case,  39  Ga.  718. 

Where  the  guilt  or  innocence  of  a  person  charged  with  murder  depends 
materially  upon  the  question  whether  he  had  reasonable  ground  to  believe  him- 
self to  be  in  danger  when  the  deceased  was  advancing  upon  him  with  a  drawn 
knife,  proof  of  threats  previously  made  by  the  deceased  is  admissible  though 
they  are  not  shown  to  have  been  communicated  to  the  defendant.  Miller  v. 
Com.  (Ky.)  10  Ky.  L.  Rep.  672;   White  v.  Territory,  3  Wash.  Ter.  397. 

A  threat  made  by  the  deceased  on  the  day  before  the  killing  that  he  would 
elect  his  man  at  tbe  election  which  was  to  occur  next  day,  or  kill  the  deceased, 
was  held  to  be  admissible  as  affecting  the  question  of  whether  the  killing  was 
done  in  self-defense,  although  not  communicated.  Hart  v.  Com.  85  Ky.  77,  7 
Am.  St.  Rep.  576. 

Upon  an  indictment  for  murder  evidence  was  admitted  to  the  effect  that  a 
short  time  before  the  killing  the  deceased  had,  at  a  meeting  of  the  secret  society 
of  Good  Templars,  made  threats  against  the  prisoner,  and  said  that  he  should 
stop  selling  liquor  or  lose  his  life,  to  show  the  character  of  the  attack,  the 
intention  with  which  it  was  made,  and  that  he  had  reasonable  grounds  to 
believe  it  necessary  to  go  to  the  extent  of  taking  his  adversary's  life.  Duias  v. 
State,  11  Ind.  557,  71  Am.  Dec.  370. 

In  Stokes  v.  People,  53  N.  Y.  174,  evidence  had  been  given  making  it  a  ques- 
tion for  the  jury  whether  the  case  was  one  of  excusable  homicide  upon  the 
ground  that  the  accused  killed  the  deceased  in  self-defense.  It  was  held  that 
evidence  of  violent  threats  against  the  life  of  the  accused  were  admissible. 

Grover,  J.,  in  this  case  thus  lays  down  the  reasons  upon  which  this  rule  is 
founded:     "Evidence  of  threats  made  by  the  deceased,  which  had  been  com- 


5S2  LAW    OF    EVIDENCE    IN    CRIMINAL    CASES. 

municatcd  to  the  accused,  was  received  by  the  court.  Proof  of  the  latter  facts 
was  competent,  as  tending  to  create  a  belief  in  the  mind  of  the  accused  that  his 
life  was  in  danger,  or  that  he  had  reason  to  apprehend  some  great  bodily  harm 
from  the  acts  and  motions  of  the  deceased,  when,  in  the  absence  of  such  threats, 
such  acts  and  motions  would  cause  no  such  belief.  But  why  admissible  upon 
this  ground?  For  the  reason  that  threats  made  would  show  an  attempt  to  exe- 
cute them  probable  when  an  opportunity  occurred,  and  the  more  ready  belief 
of  the  accused  would  be  justified  to  the  precise  extent  of  this  probability.  But 
an  attempt  to  execute  threats  is  equally  probable,  when  not  communicated,  to 
the  party  threatened  as  when  they  are  so;  and  when,  as  in  this  case,  the  ques- 
tion is  whether  the  attempt  was  in  fact  made,  we  can  see  no  reason  for  exclud- 
ing them  in  the  former  that  would  not  be  equally  cogent  for  the  exclusion  of 
the  latter,  the  latter  being  admissible  only  for  the  reason  that  the  person  threat- 
ened would  the  more  readily  believe  himself  endangered  by  the  probability  of 
an  attempt  to  execute  such  threats.  Threats  to  commit  the  crime  for  which  a 
person  is  upon  trial  are  constantly  received  as  evidence  against  him,  as  circum- 
stances proper  to  be  considered  in  determining  the  question  whether  he  has,  in 
fact,  committed  the  crime,  for  the  reason  that  the  threats  indicate  an  intention 
to  do  it  and  the  existence  of  this  intention  creates  a  probability  that  he  has  in 
fact  committed  it.  Had  the  deceased,  just  previous  to  his  going  into  the  hotel 
where  the  transaction  occurred,  declared  that  he  was  going  there  to  kill  the 
accused,  and  that  he  was  prepared  to  execute  this  purpose,  we  think  the  evi- 
dence would  have  been  competent  upon  the  question  whether  he  had  in  fact 
made  the  attempt  when  that  question  was  litigated.  And  yet  there  is  in  prin- 
ciple no  difference  between  this  and  the  testimony  offered  and  rejected.  The 
difference  is  only  in  degree." 

But  in  State  v.  Bowser',  42  La.  Ann.  936,  before  prior  acts,  conduct,  or  threats 
of  the  deceased  can  be  shown  to  excuse  a  homicide  on  the  ground  of  self- 
defense,  knowledge  thereof  by  the  defendant  must  be  proved. 

3.   Threats  against  third  persons. 
a.  By  the  defendant. 

Generally,  threats  made  by  the  defendant,  to  kill  some  person  other  than  the 
deceased  are  not  admissible.     Carr  v.  State,  23  Neb.  749. 

Threats  against  a  particular  person  with  whom  the  prisoner  had  had  a  quarrel 
are  not  admissible  to  show  malice  or  intention  to  kill  another  person  with 
whom,  at  the  time,  he  had  no  quarrel,  but  whom,  in  a  scuffle,  he  afterwards 
killed.     Abernethy  v.  Com.  101  Pa.  328. 

A  threat  of  defendant  to  "get  even"  with  a  person  whom  he  supposed  to  be 
the  author  of  a  libelous  article  but  whom  he  afterwards  found  out  was  not, 
cannot  be  proved  against  him  on  a  trial  for  killing  another  person,  his  ill  feeling 
towards  whom  grew  out  of  the  same  publication.  People  v.  Powell,  11  L.  R. 
A.  75,  87  Cal.  348. 

But  in  Palmer  v.  People  (111.)  June  16,  1891,  it  was  held  that  evidence  that 
one  accused  of  murder  iu  killing  an  officer  who  was  attempting  to  arrest  him 
but  previously  stated  that  he  expected  arrest  by  another  officer,  and  that  he 
exhibited  a  deadly  weapon  and  indicated  his  intention  to  use  it  in  case  such 
officer  attempted  to  arrest  him,  is  admissible  to  show  his  animus  and  a  pre- 
mediated  design  to  make  resistance  to  the  expected  arrest. 

Threats  of  an  accused  to  kill  several  persons,  including  deceased,  are  not  in- 


EVIDENCE    OF    SELF-DEFENSE.  583 

admissible  in  evidence  as  being  threats  to  kill  others  than  deceased,  where  the 
theory  of  the  state  is  that  defendant  and  others  had  conspired  together  to  kill 
all  of  those  persons.     Slade  v.  State,  29  Tex.  App.  381. 

On  a  trial  for  murder  alleged  to  have  been  the  result  of  a  conspiracy,  evi- 
dence of  a  threat  made  by  the  mob  immediately  after  the  homicide  to  kill 
another,  and  of  their  endeavors  to  execute  such  threat,  was  admissible  as  tend- 
ing to  show  the  desperate  character  of  the  conspiracy,  and  that  murder  was  a 
fart  of  its  programme.     State  v.  McCahill,  72  Iowa,  111. 

Evidence  of  previous  threats  made  by  defendant  against  a  railroad  company 
is  admissible  on  a  trial  for  an  assault  upon  one  of  its  employes,  upon  the  ques- 
tion of  the  motive  and  intent  of  the  assailant,     tfewton  v.  State,  92  Ala.  33. 

On  a  trial  for  homicide,  evidence  of  a  threat  to  kill  the  defendant,  by  a  man 
waom  the  witness  did  not  know  to  be  the  deceased  except  as  he  was  informed 
by  a  bystander,  is  not  admissible.     Hasson  v.  Com.  (Ky.)  10  Ky.  L.  Rep.  1054. 

b.  By  the  deceased. 
Evidence  of  quarrelsome  conduct  and  threats  made  by  the  deceased  against  a 
third  party  shortly  before  the  killing  is  not  admissible  when  not  brought  to 
tLe  knowledge  of  the  prisoner.     People  v.  Henderson,  28  Cal.  465. 

4.    Threats  by  third  persons. 

A  single  isolated  threat  of  a  third  party,  unconnected  with  any  other  circum- 
stance of  the  killing,  is  not  admissible  on  a  trial  for  homicide.  Woolfolk  v. 
State,  81  Ga.  551;  Holt  v.  State,  9  Tex.  App.  571. 

On  the  trial  of  one  for  the  murder  of  a  woman,  threats  by  the  husband  of 
the  woman,  made  some  time  before,  were  held  inadmissible,  there  being  no 
evidence  that  the  threats  had  been  lately  renewed  or  that  the  hostile  feeling 
continued  to  the  time  of  the  killing.      Com.  v.  Abbott,  1%0  Mass.  472 

Threats  made  by  the  brother  of  the  accused  against  the  deceased  are  inad- 
missible if  the  brother  is  not  shown  to  have  been  indicted  for  the  offense,  and 
there  is  no  evidence  tending  to  show  a  conspiracy  between  the  brothers  as  to 
the  crime  charged.     State  v.  Laque,  41  La.  Ann.  1070. 

But  threats  by  an  accomplice  of  the  defendant  against  the  deceased  because 
the  latter  was  talking  about  his  sister,  are  admissible  because  tending  to  show 
malice  independent  of  the  defendant,  where  the  accomplice  testified  that  he 
killed  the  deceased  at  the  instigation  of  the  defendant.  Marler  v.  State,  67  Ala. 
55,  42  Am.  Rep.  95. 

Threats  of  discharged  employes  against  a  railroad  company  are  admissible 
in  an  action  against  it  for  personal  injuries  to  a  passenger  by  a  wreck,  in  con- 
nection with  evidence  that  the  wreck  was  caused  by  a  tie  inserted  in  a  frog  in 
such  a  manner  that  it  must  have  been  placed  there  by  human  means;  that 
there  had  been  difficulty  between  the  company  and  its  employes;  and  that  on 
the  evening  of  the  accident  persons  had  been  seen  acting  suspiciously  on  the 
tracks, — to  show  that  the  train  had  been  wrecked  by  the  intentional  wrong 
doing  of  a  third  person.      Worth  v.  Chicago,  M.  &  St.  P.  R.  Co.  51  Fed.  Rep. 

171. 

5.   General  threats. 

General  threats  made  by  the  defendant  on  trial  for  murder,  some  time  before 
the  killing,  are  inadmissible  in  evidence,  when  defendant  and  deceased  are 
shown. to  have  been  on  friendly  terms  until  the  day  of  the  homicide.  State  v. 
Crabtree  (Mo.)  July  1,  1892. 


584  LAW    OF    EVIDENCE    IN    CKIMINAL    CASES. 

On  a  trial  for  murder  a  threat  by  the  deceased,  made  the  day  before  the 
murder,  that  he  was  going  to  win  some  money  or  kill  some  one,  is  not  admis- 
sible where  there  is  nothing  to  connect  the  threat  with  the  defendant,  although 
defendant  shot  him  in  a  quarrel  at  a  gaming  table.    King  v.  Stale,  89  Ala.  146. 

But  evidence  of  a  threat  made  by  deceased  just  before  the  killing,  not  directed 
to  the  defendants  in  terms  but  plainly  referring  to  them,  is  admissible.  Sparks 
v.  Com.  89  Ky.  044. 

And  in  Whiitaker  v.  Com.  (Ky.)  13  Ky.  L.  Rep.  504,  it  was  held  that  general 
threats  by  defendant  to  kill  someone  on  that  day  accompanied  by  an  exhibition 
or  reference  to  a  knife  and  pistol,  though  inadmissible  as  part  of  the  res  geste 
of  a  homicide  committed  by  him  of  which  they  formed  no  part,  are  competent 
to  show  general  malice  and  a  purpose  to  injure  and  kill  someone. 

And  in  Hopkins  v.  Corn.  50  Pa.  9,  88  Am.  Dec.  518,  it  was  said  not  to  be 
necessary  that  the  victim  should  be  selected.  Threats  of  the  prisoner  within 
an  hour  before  the  stabbing  that  within  twenty-four  hours  he  would  kill  some- 
body are  admissible  as  part  of  the  res  gestce. 

The  bare  fact  that  threats  uttered  by  one  charged  with  murder,  in  the  course 
of  the  transaction  in  which  the  crime  was  committed,  did  not  disclose  the  name 
of  the  party  threatened,  does  not  make  proof  of  them  immaterial  or  irrelevant. 
State  v.  King,  9  Mont.  445. 

Evidence  that  defendant,  charged  with  murder,  was  heard  to  make  threats, 
"  to  kill  a  man  before  sundown,"  on  the  day  of  the  murder,  is  admissible. 
Hodge  v.  State,  2G  Fla.  11. 

6.  Effect  of  lapse  of  time. 

The  remoteness  or  nearness  of  time  as  to  threats  and  declarations,  pertaining 
to  the  act  subsequently  committed  makes  no  difference  as  to  the  competency  of 
the  testimony.     Keener  v.  State,  18  Ga.  194;  Slate  v.  Ford,  3  Strobh.  L.  517. 

Evidence  of  threats  made  by  a  defendant  on  trial  for  murder  against  deceased 
four  months  previous  to  the  killing  is  admissible.  Pate  v.  State  (Ala.)  Jan.  8, 
1892. 

Threats  against  deceased  made  by  defendant  in  a  murder  trial  a  month  before 
the  homicide  are  admissible  upon  the  trial.     State  v.  Campbell,  35  S.  C.  28. 

Threats  made  three  years  before  are  admissible  to  show  malice  on  the  part  of 
one  who  has  committed  an  assault.  Peterson  v.  Toner,  80  Mich.  350.  See  also 
Territory  v.  Roberts,  9  Mont.  12;  Babcock  v.  People,  13  Colo.  515. 

But  the  weight  to  be  given  to  evidence  of  previous  threats  made  by  the  de- 
fendant depends  upon  their  character,  the  occasion,  nearness  of  time,  and  the 
particular  circumstances  surrounding  the  offense.  White  v.  Territory,  3  Wash. 
Ter.  397;  People  v.  Brown,  76  Cal.  573;  Cribbs  v.  State,  86  Ala.  613;  State  v. 
Olahn,  97  Mo.  679;  Pate  v.  State  (Ala.)  Jan.  8,  1892;  Griffin  v.  Stale,  90  Ala. 
599;  Long  v.  State,  86  Ala.  43;  Barnes  v.  State,  88  Ala.  204;  Evans  v.  State,  62" 
Ala.  6. 

The  fact  that  six  or  eight  months  have  elapsed  since  the  threat,  goes  not  to- 
the  admissibility,  but  to  the  weight  to  be  given  to  the  threat.  Slate  v.  Bradley 
(Vt.)  Aug.  25,  1892. 

And  the  effect  of  lapse  of  time  upon  their  weight  is  for  the  jury.  Cribbs  v. 
State,  86  Ala.  013. 

On  an  indictment  for  assault  with  intent  to  murder,  a  conversation  was  held 
inadmissible  between  witness  and  the  injured  party  on  the  evening  before  the 


EVIDENCE   OF    SELF-DEFENSE.  585 

shooting,  in  -which  the  injured  party  had  said  that  he  had  intended  to  kill 
defendant,— "the  d — d  son  of  a  whore,"  though  it  appeared  that  witness  had 
informed  defendant  of  the  insulting  words,  it  not  appearing  that  the  shooting 
took  place  at  the  first  meeting  between  the  parties  after  defendant  was  so  in- 
formed.    Howard  v.  State,  23  Tex.  App.  2ti~). 

The*  weight  of  authority  establishes  the  doctrine  that  when  a 
person  being  without  fault  and  in  a  place  where  he  has  a  right  to 
be  is  violently  assaulted,  he  may,  without  retreating,  repel  force 
by  force  and  if,  in  the  reasonable  exercise  of  his  right  of  self- 
defense,  his  assailant  is  killed  he  is  justifiable.  Runyan  v.  State. 
57  Ind.  84,  26  Am.  Rep.  52;  1  Bishop,  Crim.  L.  §  865. 

§  30-f.  The  Rule  in  Alabama.— The  Alabama  decisions  hold, 
that  after  the  intention  of  killing  of  the  deceased  with  a  deadly 
weapon  had  been  proved,  the  burden  rested  on  the  defendant  to 
prove  a  pressing  necessity  on  his  part  to  take  life  in  self-defense, 
unless  this  fact  arises  out  of  the  question  produced  against  him  to 
prove  the  homicide.  The  onus,  therefore,  rests  on  the  defendant, 
in  such  case,  to  show  that  he  could  not  safely  retreat  without  appar- 
ently increasing  his  peril.  This  must  1  >e  s< »,  for  the  inability  to  safety 
retreat  is  one  of  the  elements  of  fact  which  enters  into  and  creates 
the  necessity  to  kill.  Carter  v.  State,  vi'  Ala,  13.  If  there  be  a 
safe  mode  of  successful  retreat,  there  can  be  no  necessity  to  kill 
unless  the  appearances  surrounding  the  defendant  reasonably 
indicate  the  contrary.  Webster  v.  Com.  5  Cush.  295,  .52  Am. 
Dec.  711.  The  rule  as  to  the  onus  of  proof  on  this  point  is  stated 
in  accordance  with  the  above  view  in  Cleveland  v.  State,  86  Ala. 
2,  which  is  of  later  authority  than  Brown  v.  State,  83  Ala.  33 
where  the  contrary  rule  seems  to  be  asserted.  We  believe  the 
doctrine  of  Cleveland  v.  State  to  be  correct,  and  adhere  to  it. 
Lewis  v.  Stati ,  88  Ala.  11. 

The  burden  was  on  the  state,  however,  to  show  that  the  de- 
fendants were  in  fault  in  bringing  on,  or  provoking  the  difficulty, 
— not  on  the  defendants  to  prove  that  they  did  not  provoke  it. 
Brown  v.  State,  supra;  McDaniel  v.  State,  76  Ala.  1. 

§  365.  Prool  of  Lying  in  Wait  and  Violent  Temper. — The 
accused  has  a  right  to  prove  that  a  man,  then  dead,  had  but  a 
short  time  before  the  homicide,  told  him  that  the  deceased  had 
armed  himself  with  a  shotgun  to  kill  him.  This  was  not  legal 
evidence  of  deceased  arming  himself  to  kill  accused,  but  it  was 
competent  to  prove  that  accused  had   so  heard,  and  may  have  a 


580  LAW    OF    EVIDENCE    IN   CRIMINAL   CASES. 

right  so  to  believe;  and  to  that  extent  and  for  that  purpose,  it  wasi 
admissible.     Carico  v.  Com.  7  Bush,  124-. 

The  opinion  in  the  case  last  cited  announces  a  rule  of  conduct, 
which  if  generally  observed,  would  ultimately  result  in  utter 
prostration  of  criminal  justice  stripped  of  its  verbiage.  This 
ghastly  proposition  may  be  paraphrased  as  follows:  It  is  argued 
that  the  deceased  made  violent  threats  against  the  life  of  defend- 
ant long  before,  and  up  to  a  short  period  of  the  killing,  and  that 
these  threats  coming  to  a  knowledge  of  defendant,  he  had  a  right 
to  hill  the  deceased  on  sight. — Let  the  murderer  show  communica- 
tion to  him  of  statements  made  by  the  victim,  that  would  lead  him 
to  apprehend  attempts  against  his  life,  and  such  evidence  will  jus- 
tify an  acquittal ! 

Judge  Caruthers,  in  commenting  upon  this  edifying  propo- 
sition, says:  '"We  have  had  one  case  before  us  in  the  last  few 
years,  in  which  the  hroad  proposition  stated  in  the  first  of  the 
above  extract,  was  charged  as  the  law.  But  for  this,  and  the  indi- 
cation that  it  lias  obtained  to  some  limited  extent  in  the  legal 
profession,  it  would  scarcely  lie  deemed  necessary  to  notice  it. 
There  is  no  authority  for  such  a  position.  It  would  be  monstrous. 
~No  court  should  for  a  moment  entertain  or  countenance  it.  The 
criminal  code  of  no  country  ever  has,  nor,  as  we  presume,  ever 
will,  give  place  to  so  bloody  a  principle." 

"The  threats  of  even  a  desperate  man,  do  not,  and  ought  not, 
to  authorize  the  person  threatened  to  take  his  life;  nor  does  any 
demonstration  of  hostility  short  of  a  manifest  attempt  to  commit 
a  felony,  justify  a  measure  so  extreme.  But  when  one's  life  has 
hern  repeatedly  threatened  by  such  an  enemy,  when  an  actual 
attempt  has  been  made  to  assassinate  him,  and  when,  after  all 
this,  members  of  his  family  have  been  informed  by  his  assailant 
that  he  is  to  he  killed  on  sight,  we  hold  that  he  may  lawfully  arm 
himself  to  resist  the  threatened  attack.  He  may  leave  his  home 
for  the  transaction  of  his  legitimate  business,  or  for  any  lawful 
and  proper  purpose;  and  if,  on  such  an  occasion,  he  casually  meets 
his  enemy,  having  reason  to  believe  him  to  be  armed  and  ready 
to  execute  his  murderous  intentions,  and  he  does  believe,  and  from 
the  threat.-,  the  previous  assault,  the  character  of  the  man,  and  the 
circumstances  attending  the  meeting,  he  has  the  right  to  believe, 
that  the  presence  of  his  adversary  puts  his  life  in  imminent  peril, 
and  that  he  can  secure  his  personal  safety  in  no  other  way  than 


EVIDENCE    OF    SELF-DEFENSE.  587 

to  kill  him,  lie  is  obliged  to  wait  until  he  is  actually  assailed.  He 
may  not  hunt  his  enemy  and  shoot  him  down  like  a  wild  beast; 
nor  has  he  the  right  to  bring  about  an  unnecessary  meeting  in 
order  to  have  a  pretext  to  slay  him;  but  neither  reason  nor  the 
law  demands  that  he  shall  give  up  his  business  and  'abandon 
society  to  avoid  such  meeting.'  " 

Upon  the  trial  of  an  indictment  for  murder  in  the  first  degree, 
where  the  homicide  is  proved  and  the  evidence  discloses  no  cir- 
cumstances indicating  that  it  was  committed  under  the  influence 
of  provocation  at  the  time,  or  sudden  anger,  but  it  appears  the  act 
was  done  with  premeditation,  and  deliberation,  evidence  that  the 
prisoner  had  an  irascible  temper,  or  was  subject  to  fits  of  passion 
from  slight  causes  is  incompetent. 

So  also  evidence  is  incompetent  that  the  conduct  of  the  prisoner 
for  a  period  prior  to  the  homicide  was  characterized  by  eccentric- 
ities and  peculiarities* causing  criticism  with  reference  to  his  men- 
tal capacity,  where  the  evidence  is  not  offered  for  the  purpose  of 
proving  insanity,  but  solely  as  bearing  upon  the  question  of 
intent,  deliberation  and  premeditation.  Sindram  v.  People,  88 
K.  Y.  196;  Whart.  &  S.  Medical  Jurisprudence,  §§  307,  692. 

After  evidence  has  been  given  tending  to  show  that  a  homicide 
was  committed  in  self-defense,  defendant  can  fol!< >w  it  by  proof 
of  general  reputation  of  quarrelsomeness  and  violence  of  the 
deceased,  but  cannot  give  in  evidence  specific  acts  of  deceased  of 
violence  towards  third  persons  or  of  cruelty  to  domestic  animals. 
People  v.  Druse,  5  X.  Y.  Grim.  Rep.  10. 

The  question  of  the  admissibility  of  the  evidence  of  the  general 
character  of  the  deceased,  is  one  of  great  doubt.  The  question 
first  came  up  before  the  New  York  court  of  appeals  in  People  v. 
Lavih,  2  Keyes,  371. 

The  prisoner  in  that  case  had  been  convicted  of  the  murder  of 
his  wife.  The  defense  seems  to  have  been  that  the  murder  was 
■committed  in  self-defense.  The  particular  violence  alleged  against 
the  deceased  was  that  she  threw  the  cover  of  an  iron  pot  at  her 
husband.  The  general  term  reversed  the  conviction.  Evidence 
•of  the  general  character  of  accused,  was  in  that  case  rejected,  and 
the  general  term  probably  gave  such  refusal  as  a  reason  for  the 
reversal  of  the  conviction,  in  the  court  of  appeals,  Judge  Davies, 
in  an  elaborate  opinion,  held  the  rejection  of  the  evidence  light, 
but  the  judgment  of  reversal  was  affirmed  by  a  majority  of  the 
court  on  different  grounds. 


588  LAW    OK    EVIDENCE    IN    CK1M1NAL    CASES. 

In  Eggler  v.  People,  56  N.  Y.  042,  there  was  also  a  conviction 
for  murder.  In  this  case,  at  the  trial,  proof  of  the  general  char- 
acter of  the  deceased  for  violence  was  received.  The  prisoner 
offered  to  show  specilic  acts  of  violence  in  addition,  which  offer 
was  rejected,  and  the  court  of  appeals  held  the  rejection  right. 
In  Blake  v.  People,  73  N.  Y.  586,  also  a  case  of  murder,  the 
prisoner,  by  the  cross-examination  of  one  of  the  witnesses  for  the 
people,  sought  to  prove  that  the  deceased  was  a  quarrelsome  and 
dangerous  man.  The  court  refused  to  receive  the  testimony  at 
that  time.'  It  was  held  by  the  court  of  appeals  that  the  court 
committed  no  error  in  rejecting  the  evidence  in  that  way;  "it 
being  the  introduction  of  a  new  subject  as  matter  of  defense,  it. 
was  simply  a  question  as  to  the  order  of  proof,  which  was  in  the 
discretion  of  the  court."  While  thus,  it  will  be  seen,  that  is  no 
direct  decision  upon  the  question,  the  weight  of  authorities  seem 
to  call  for  the  admission  of  the  testimony  ia  this  case.  In  Peo- 
ple v.  Lamb,  2  Keyes,  371,  Judge  Davies  recognizes  an  exception 
to  the  general  rule  that  the  character  of  the  deceased  is  not  a 
question  to  be  raised  upon  trials  for  murder.  There  is  no  right 
given  to  kill  any  man  because  of  his  character.  When,  however,, 
the  character  of  the  deceased  is  a  material  part  to  be  considered 
in  determining  the  guilt  of  the  accused,  it  is  to  be  received  like 
other  facts;  and  if  such  evidence  is  rejected  improperly,  then  it 
furnishes  a  case  where  all  the  evidence  was  not  before  the  jury, 
and  an  improper  rejection  of  evidence  is  ground  for  reversal. 
People  v.  Stokes,  53  N.  Y.  164.  The  prisoner  has  the  right  to 
have  all  competent  evidence  in  his  favor  considered,  and  its  rejec- 
tion cannot  be  overlooked.  In  People  v.  Lamb,  supra,  Judge 
Davies  classes  among  the  exceptions  to  the  general  rule  that  the 
character  of  deceased  is  not  a  subject  of  inquiry,  cases  where  the. 
assault  was  first  commenced  by  deceased,  and  the  claim  of  the 
prisoner  is  that  the  killing  was  in  self-defense. 

It  may  be  stated  as  the  general  rule  sustained  by  several  recent, 
decisions  and  founded  on  manifest  justice,  that  in  trials  for  homi- 
cide or  in  cases  of  aggravated  assault,  for  the  accused  to  show  the 
hectoring  disposition  of  the  deceased,  his  tendency  to  brawls,  his' 
great  muscular  strength,  and  his  violent  demeanor,  especially  when 
under  the  influence  of  liquor. 

It  must  further  appear  that  these  characteristics  were  known  to 
the  accused  at  the  time  of  the  affray,  such  evidence  being  the  case 


EVIDENCE    OF    SELF-DEFENSE.  589 

it  is  an  important  circumstance  from  which  the  jury  may  deter- 
mine the  nature  of  the  assault,  and  the  course  of  treatment  the 
accused  had  reason  to  expect  from  his  assailant.  Stale  v.  Collin*, 
32  Iowa,  36;  State  v.  Keene,  50  Mo.  357;  Surd  v.  People,  25 
Mich.  405. 

§  366.  Vacillation  in  the  Authorities. — A  critical  examina- 
tion of  the  reports  will  disclose  great  vacillation  as  to  the  admissi- 
bility of  this  species  of  evidence.  The  question  is  one  of  great 
importance,  and  of  constantly  recurring  interest  in  criminal  pro- 
ceedings. The  supreme  court  of  Missouri,  through  Wagner,  J., 
who  wrote  for  reversal,  has  influenced  this  phase  of  our  subject 
by  a  very  able  opinion,  which  will  illustrate  the  tendency  of  the 
American  judiciary  on  this  subject.     I  subjoin  the  opinion  entire. 

§  367.  Pertinent  Illustration  of  a  Missouri  Case. — "The 
defendant  was  indicted  for  killing  one  Evans.  It  seems  that  the 
defendant  had  been  on  terms  of  amity  and  good  will  with  Evans 
till  the  day  before  the  killing  took  place.  On  that  day,  they  met 
at  the  house  of  a  friend,  together  with  other  company,  when  the 
defendant  treated  Evans  with  friendship  and  civility.  But  Evans 
had  ascertained  that  the  defendant  was  engaged  to  be  married  to 
a  niece  of  his  wife,  and  was  greatly  enraged  about  it,  and  instead 
of  returning  the  kind  treatment  of  the  defendant,  he  violently 
assaulted  him  with  a  pistol  and  knife,  and  swore  that  he  would 
kill  him,  nothing  but  his  blood  would  satisfy  him. 

"Through  the  intercession  of  friends,  he  was  kept  from  carrying 
out  his  purpose;  but  the  defendant,  in  order  to  save  himself  from 
violence  and  death,  was  obliged  to  make  his  escape  from  a  back 
door.  After  this  occurrence,  Evans  renewed  his  threats — declared 
that  he  would  make  no  compromise  in  reference  to  the  matter — 
that  he  would  kill  defendant  on  sight,  if  it  was  the  last  act  of  his 
life.  These  threats  were  communicated  to  the  defendant  the 
same  evening. 

"  It  further  appears  that  on  the  morning  of  the  occurrence  above 
referred  to,  Evans  hallooed  to  the  defendant,  saying  to  him  that 
he  was  a  'damned  cowardly  son  of  a  bitch,  and  that  if  he  would 
come  up  there  he  would  thrash  hell  out  of  him,  and  that  he 
intended  to  kill  him  if  he  married  his  niece.'  The  only  answer 
defendant  made  to  his  abuse,  was  to  ask  Evans  what  he  wanted 
to  kill  him  for.  On  his  arrival  at  home,  defendant  went  to  his 
stable  to  put  his  horse  up,  and  whilst   he  was  still   at   his  stable, 


590  LAW    OF    EVIDENCE    IN    CRIMINAL    CASES. 

Evans  rode  up.  Evans  went  into  a  store  across  the  street  from 
the  stable.  Defendant  wanted  to  go  into  the  store,  but  he  was 
warned  not  to  do  so,  as  he  would  be  in  danger  of  his  life  if  he  met 
Evans.  Defendant  then  stayed  in  the  stable,  and  sent  friends  to 
have  an  interview  with  Evans,  for  the  purpose  of  trying  to  arrange 
the  difficulty.  But  Evans  was  obdurate;  he  would  abate  nothing 
of  his  hatred  and  his  desire  for  blood,  and  the  life  of  defendant 
only  would  satisfy  him.  Evans  then  came  out  on  the  street,  and 
was  in  fierce  altercation  with  the  persons  around  him,  when  the 
defendant  fired  the  shot  from  which  he  afterward  died. 

"At  the  trial,  the  court  excluded  all  evidence  of  what  occurred 
on  the  day  previous  to  the  killing,  and  the  threats  made  by  the 
deceased  in  reference  to  his  intention  to  kill  the  defendant.  In 
this,  the  court  unquestionably  erred.  This  whole  transaction,  and 
all  the  matters  connected  with  the  difficulty,  are  so  nearly  allied 
that  it  is  impossible  to  separate  them.  From  the  inception  to  the 
fatal  consummation,  less  than  twenty-four  hours  intervened.  The 
threats  continued  down,  uninterruptedly,  and  were  all  nearly 
coeval  with  the  killing,  and  they  were  all  brought  home  to  the 
knowledge  of  the  party  who  did  the  slaying.  They  constituted 
the  chain  of  one  continued  hostile  series  of  facts  by  the  deceased, 
down  to  the  time  he  was  shot.  That  they  had  created  a  dread  in 
the  breast  of  the  defendant,  that  he  was  in  danger  of  losing  his 
life,  there  can  be  no  doubt,  that  the  evidence  was  admissible  to 
show  the  reasonableness  of  his  fears."     State  v.  Sloan,  47  Mo.  604. 

§  368.  Yiews  of  the  Virginia  Court. — There  are  compara- 
tively few  reported  cases  that  contain  such  abundant  dicta  upon 
this  subject  of  threats  or  antecedent  grudge,  as  a  well  considered 
case  decided  by  the  supreme  court  of  appeals  of  Virginia  in  1872. 
The  decision  was  by  a  divided  court,  which  will  the  better  indi- 
cate the  obscurity  with  which  this  subject  is  still  shrouded.  The 
importance  of  the  topic,  and  the  discord  in  the  rulings,  induce  an 
extended  quotation  from  the  opinion  in  what  is  now  well  recog- 
nized as  a  celebrated  criminal  case.  Read  v.  Com,  22  Graft.  024. 
"Words  alone,  however  insulting  or  contemptuous,  are  never  a  suf- 
ficient provocation  to  have  that  effect,  at  least  where  a  deadly 
weapon  is  used;  so  tender  is  the  law  of  human  life,  and  so  much 
opposed  is  it  to  the  use  of  such  a  weapon. 

"  It  is  not  only  necessary  in  such  a  case  and  for  such  an  effect 
that   a  reasonable   provocation  should  be  received,  but  it  is  also 


EVIDENCE    OF    SELF-DEFENSE.  591 

necessary  that  the  provocation  should  have  the  effect  of  produc- 
ing sudden  passion  under  the  influence  of  which  alone  the  offense 
is  committed.  It  must  be  a  sudden  transport  of  passion,  which 
the  law  calls  furor  orevis.  If  a  person  on  receiving  the  gravest 
provocation  is  unmoved  by  passion,  but  wantonly  and  wilfully 
and  wickedly  kills  his  adversary  otherwise  than  in  self-defense,  he 
is  guilty  of  murder.  The  law  mitigates  the  offense  to  manslaughter 
only  as  an  indulgence  to  the  infirmity  of  human  nature.  Provo- 
cation without  passion,  or  passion  without  provocation,  will  not 
do;  both  must  concur  to  reduce  the  offense  to  the  grade  of  man- 
slaughter. 

"Again,  if  an  unlawful  homicide  be  committed  in  pursuance  of 
a  preconceived  purpose,  the  offense  will  be  murder,  no  matter 
how  great  a  sudden  provocation  may  have  immediately  preceded 
the  act.  The  provocation  may  have  been  brought  about  or  sought 
by  the  perpetrator,  or  he  may  have  availed  himself  of  it  to  give 
color  of  justification  or  excuse  to  his  act,  done  in  execution  of  his 
deliberate  purpose.  It  is  true  that  where  there  is  both  an  old 
grudge  and  fresh  provocation,  the  jury  ought  rather  to  presume, 
in  the  absence  of  sufficient  evidence  to  the  contrary,  that  the 
homicide  was  induced  by  the  fresh  provocation,  and  not  by  the 
old  grudge.  But  then  this  is  a  matter  for  the  jury  on  all  the  evi- 
dence before  it,  and  there  is  generally  sufficient  evidence  in  every 
such  case  to  satisfy  the  jury  beyond  a  doubt  which  one  of  these 
two  concurring  motives  induced  the  act. 

"But,  in  this  case,  there  was  abundant  evidence  of  an  antecedent 
grudge  and  previous  threats,  and  preparation  for  the  commission 
of  the  act.  Merriman  has  lost  a  twenty-dollar  note,  and  suspected 
the  prisoner  of  stealing  it.  The  prisoner  asked  for  time  to  show 
his  innocence,  and  rejjeated  the  request  from  time  to  time,  which 
Merriman  as  often  granted  him.  At  length  the  prisoner  having 
given  him  an  account  which  was  not  satisfactory,  he  charged  the 
prisoner  with  the  theft.  Witness  then  said  that  Merriman  must 
take  back  the  charge  or  he  would  shoot  him.  Merriman  replied, 
"  Shoot  then,  if  you  choose,  I  will  not  take  it  back."  This  threat 
of  the  prisoner  and  this  reply  of  Merriman  were  repeated  as 
many  as  five  different  times.  Now,  although  both  the  prisoner 
and  Merriman  drank  freely  on  the  day  of  the  commission  of  the 
act,  and  were  under  the  influence  of  spirits  at  that  time,  yet  it 
does  not  appear,  and  it  is  not  probable,  that  they   were  under 


592  LAW    OF    EVIDENCE    IN    CRIMINAL    CASES. 

such  influence  on  the  former  occasion  when  the  threat  was  made. 
The  prisoner  prepared  himself  with  a  deadly  weapon,  which  he 
carried  secretly  about  his  person.  It  does  not  appear  that  he  had 
been  in  the  habit  of  carrying  such  a  weapon,  and  as  it  is  unlawful 
to  do  so  habitually,  the  jury  might  well  have  presumed  that  he 
provided  himself  with  the  weapon  for  the  special  purpose  of  exe- 
cuting his  threat,  unless  he  could  intimidate  Merriman  to  retract 
the  charge  he  had  made  against  him.  These  acts,  connected  with 
the  actual  shooting  which  followed,  and  the  circumstances  under 
which  it  was  done,  strongly  tend  to  show  that  the  act  was  delib- 
erately done  in  execution  of  his  prior  threats  that  he  would  do 
precisely  what  he  did  do." 

The  inaccurate  dictum  of  the  minority  report  in  this  ably 
reasoned  case  had  the  effect  for  a  time  of  weakening  its  influence 
as  a  rule  of  criminal  law  but  time  has  failed  to  impair  the  logic 
of  its  conclusions  and  it  has  met  with  the  suggestive  approval  of 
"  silent  acquiescence." 

§  369.  What  is  Reasonable  Cooling  Time. — As  already  inti- 
mated, the  question  of  the  reasonableness  of  adequacy  of  the 
provocation  must  depend  upon  the  facts  of  each  particular  case. 
That  can,  with  no  propriety,  be  called  a  rule  (or  a  question)  of 
law  which  must  vary  with  and  depend  upon  the  almost  infinite 
variety  of  facts  presented  by  the  various  cases  as  they  arise.  See 
Stark.  Ev.  (Am.  ed.  I860)  676-680.  The  law  cannot,  with  justice, 
assume,  by  the  light  of  past  decisions,  to  catalogue  all  the  various 
facts  and  combinations  of  fact  which  shall  be  held  to  constitute 
reasonable  or  adequate  provocation.  Scarcely  two  past  cases  can 
be  found  which  are  identical  in  all  their  circumstances,  and  there 
is  no  reason  to  hope  for  greater  uniformity  in  future.  Provoca- 
tions will  be  given  without  reference  to  any  previous  model,  and 
the  passions  they  excite  will  not  consult  the  precedents. 

The  same  principles  which  govern,  as  to  the  extent  to  which 
the  passions  must  be  excited  and  reason  disturbed,  apply  with 
equal  force  to  the  time  during  which  its  continuance  may  be 
recognized  as  a  ground  for  mitigating  the  homicide  to  the  degree 
of  manslaughter,  or  in  other  words,  to  the  question  of  cooling 
time.  This,  like  the  provocation  itself,  must  depend  upon  the 
nature  of  the  case. 

In  Rex  v.  Hay  ward,  6  Car.  &  P.  157,  and  Rex  v.  Lynch,  5 
Car.  &  P.  324,  this  question  of  reasonable  cooling  time  was  ex- 


EVIDENCE    OF    SELF-DEFENSE.  593 

pressly  held  to  be  a  question  of  fact  for  the  jury.  And  see 
Whart.  Am.  Crim.  L.  (4th  ed.)  §  990,  and  cases  cited.  I  am 
aware  there  are  many  cases  in  which  it  has  been  held  a  question 
•of  law;    but  I  can  see  no  principle  on  which  such  a  rule  can  rest. 

Directly  the  opposite  is  laid  down  as  the  rule  in  1  Russell, 
Crimes,  pp.  524,  525,  where  it  is  said,  "whether  the  blood  has 
had  time  to  cool  or  not  is  a  question  for  the  court  and  not  for  the 
jury."  And  in  2  Starkie,  Evidence,  pp.  947,  948,  in  speaking  of 
the  circumstances  of  "necessity,  accident  or  infirmity,"  which 
justify,  excuse  or  extenuate  the  act,  the  author  uses  the  following 
language :  "  It  is  for  the  jury  to  pronounce  upon  the  truth  of 
such  facts,  and  it  is  for  the  court  to  decide  whether  in  point  of 
law  the  fact  of  killing  is  justified,  excused  or  alleviated  by  these 
facts." 

There  is  no  evidence  of  any  time  for  passion  to  cool.  Leighton 
v.  People,  8S  K  Y.  117;  Roscoe,  ( 'rim.  Ev.  6S5. 

The  prisoner  may,  in  certain  instances,  extenuate  his  crime 
and  reduce  it  from  murder  to  manslaughter,  by  proof  that  the 
act  was  committed  during  the  transport  of  passion  and  resent- 
ment, excited  by  sudden  provocation,  which  for  the  time  subdued 
his  reason.  For  such  evidence  repels  the  inference  of  that  delib- 
erate malice  and  malignity  of  heart,  which  is  essential  to  the 
offense  (of  murder).  What  degree  of  provocation  and  under  what 
circumstances,  heat  of  blood,  the  furor  brevis  will  or  will  not  avail 
the  defendant,  is  usually  a  question  of  law,  arising  upon  the  special 
facts  of  the  case.     Roscoe,  Crim.  Ev.  964. 

It  is  the  nature  of  the  provocation  and  not  the  mere  effect  of 
it  on  the  mind  of  the  prisoner,  which  the  law  regards,  and  the 
sufficiency  of  the  provocation  to  extenuate  the  prisoner's  guilt,  is 
a  question  of  law.  If  one  killed  another  immediately  upon  a 
grave  and  serious  provocation,  likely  to  excite  great  passion,  the 
offense  will  amount  to  no  more  than  manslaughter,  although  the 
defendant  used  a  deadly  weapon.    Roscoe,  Crim.  Ev.  965. 

Where,  after  mutual  combat,  a  question  arises  whether  there 
has  been  time  for  excited  passions  to  subside,  the  question  always 
takes  this  form;  whether  then'  had  been  sufficient  time  to  cool, 
and  not  whether,  in  point  of  fact,  the  defendant  did  remain  in  a 
state  of  anger.  People  v.  Sullivan,  7  N.  Y.  400.  The  rationale 
of  this  entire  matter  would  seem  to  lie  within  a  very  small  com- 
pass. 

38 


594  LAW    OF    EVIDENCE    IN    CRIMINAL    CASES. 

In  Ferguson  v.  State,  49  Ind.  33,  35,  Pettit,  J.,  said :  "All 
elementary  authority  and  adjudicated  cases  agree  that  time  must 
be  given  for  the  passion  of  the  injured  person  to  become  calm; 
and  many  authorities  say  that  the  question  ought  to  be  submitted 
to  the  jury  as  to  whether  the  passion  of  the  injured  person  had 
been  actually  quieted.  If  we  suspend  our  discussion  of  the  prin- 
ciples which  ought  to  be  applied  to  the  question,  and  pass  to  the 
consideration  of  the  decided  cases  as  found  in  other  jurisdictions, 
we  shall  find  the  ruling  of  the  court  vindicated,  not  simply  by  the 
preponderance  of  judicial  authority,  but  by  absolute  unanimity." 

§  370.  Extended  Collation  of  Authority. — Where  the  evi- 
dence raises  a  doubt  as  to  who  was  the  aggressor  at  the  time  of 
the  homicide — the  deceased  or  the  accused,  and  it  further  appears 
that  the  threats  had  not  been  communicated  to  the  defendant, 
evidence  of  their  nature  and  character  is  admissible.  Roberts  v 
State,  68  Ala.  156;  Harris  v.  State,  34  Ark.  469;  Palmare  v 
State,  29  Ark.  248;  People  v.  Trains,  56  Cal.  251;  People  v 
Alwtree,  55  Cal.  263;  People  v.  Scoggins,  37  Cal.  676;  White  v 
Territory,  3  Wash.  Ter.  397;  West  v.  State,  2  Tex.  App.  460 
Powell  v.  State,  19  Ala.  577;  Logan  v.  State,  17  Tex.  App.  50; 
Pitman  v.  State,  22  Ark.  354;  Wilson  v.  State,  18  Tex.  App.  576; 
Dupree  v.  State,  33  Ala.  380,  73  Am.  Dec.  422;  Hughey  v.  State, 
47  Ala.  97;  Davidson  v.  People,  4  Colo.  145;  Howard  v.  State, 
23  Tex.  App.  265;  Coker  v.  State,  20  Ark.  53;  Atkins  v.  State, 
16  Ark.  568;  Green  v.  State,  69  Ala.  6;  Lingo  v.  State,  29  Ga. 
470;  Wiggins  v.  Utah,  93  IT.  S.  465,  23  L.  ed.  941;  Pridgen  v. 
State,  31  Tex.  420;  Fitzhugh  v.  "State,  13  Lea,  258;  People  v. 
Campbell,  59  Cal.  243,  43  Am.  Eep.  257;  Lleener  v.  State,  18  Ga. 
194,  63  Am.  Dec.  269;  West  v.  State,  18  Tex.  App.  640;  Allen 
v.  Stale,  17  Tex.  App.  637;  May  field  v.  State,  110  Ind.  591; 
State  v.  Brown,  22  Kan.  222;  Hart  v.  Com.  85  Ky.  77;  State  v. 
McNally,  87  Mo.  644;  State  v.  Rider,  90  Mo.  54;  Holler  v. 
State,  37  Ind.  57,  10  Am.  Eep.  74;  State  v.  Jackson,  37  La.  Ann. 
896;  Little  v.  State,  6  Baxt.  491;  State  v.  Turpin,  77  K  C.  473; 
State  v.  Janvier,  37  La.  Ann.  645;  JLarris  v.  State,  47  Miss.  318; 
Edwards  v.  State,  47  Miss.  581;  State  v.  Labuzan,  37  La.  Ann. 
489;  State  v.  Dumphey,  4  Minn.  438;  State  v.  Ryan,  30  La.  Ann. 
1176;  Newcoml  v.  State,  37  Miss.  3S3;  B infield  v.  State,  15  Neb. 
4^4;  State  v.  Fisher,  33  La.  Ann.  1344;  Pukes  v.  £tate,  11  Ind. 
557,  71  Am.  Dec.  370;    State  v.  Stewart,  9  Nev.  120;    £tate  v. 


EVIDENCE    OF    SELF-DEFENSE.  595 

Ferguson,  9  Nev.  106;  State  v.  Hall,  9  Nev.  58;  State  v.  Williams, 
40  La.  Ann.  168;  State  v.  Downs,  91  Mo.  19;  Turpln  v.  State,  55 
Md.  462;  Thomason  v.  Territory,  4  New  Mex.  150. 

In  reviewing  these  decisions  it  is  surprising  to  find  that  a  rule 
of  conduct  so  satisfactory  and  apparently  so  obvious  should  ever 
have  been  a  subject  of  judicial  controversy.  The  principle 
received  its  first  expansion  in  the  reports  of  Chief  Justice  Hobart 
in  the  time  of  James  I.,  while  the  conclusions  reached  by  that 
distinguished  peer  were  reaffirmed  by  Lord  Chancellor  Notting- 
ham and  thus  given  an  abiding  place  in  the  English  common 
law.  See  also  the  reports  of  Lord  Chief  Baron  Comyns  on  the 
game  subject. 

For  the  English  law  of  self-defense,  see  Stephen's  Digest  of 
Criminal  Law,  art.  200,  where  the  law  in  England  is  given,  to- 
gether with  criticism  of  some  well  known  cases  from  Hale  and 
Hawkins.  This  article  is  too  long  to  be  here  given  in  full,  but  is 
worthy  of  attentive  reading. 


CHAPTER  XLV. 
EVIDENCE  OF  CHARACTER. 

§  371.   Statement  of  the  Present  Rule. 

372.  Record  Evidence  of  Bad  Character  how  Rebutted. 

373.  Wliat  Evidence  of  Character  may  Show. 

374.  Always  Available  when  Evidence  is  Circumstantial. 

375.  The  Cases  Examined. 

376.  WJien  Evidence  is  Confined  to  General  Reputation. 

377.  T7ie  English  Rule  Examined. 

378.  When  Evidence  of  Good  Character  is  Unavailing. 

379.  The  Rule  Restated. 

380.  When  Negative  Evidence  of  Character  is  Competent. 

§  371.  Statement  of  the  Present  Rule. — In  regard  to  the 
admissibility  of  evidence  of  character,  there  has  been  some  fluctu- 
ation of  opinion.  The  better  rule  now  seems  to  be,  that  in  all 
cases  of  a  direct  prosecution  for  a  crime,  evidence  of  the  general 
good  character  of  the  accused  is  admissible,  as  in  those  cases 
where  the  guilty  knowledge  or  criminal  intention  is  of  the  essence 
of  the  offense.  But  where  a  penalty  is  claimed  for  the  mere  act, 
irrespective  of  the  intention,  evidence  of  character  is  not  admissi- 
ble. No  evidence  of  the  general  character  of  the  person  on  whom 
the  offense  was  committed,  is,  in  general,  admissible,  the  charac- 
ter being  no  part  of  the  res  gestae.  An  exception  to  this  rule  is, 
however,  made  in  prosecutions  for  rape.  And  in  cases  of  homi- 
cide, it  is  admissible  to  show,  in  his  favor,  expressions  of  good 
will  and  acts  of  kindness  on  the  part  of  the  prisoner  towards  the 
deceased.  Haines,  Justices  of  Peace,  p.  68S,  citing  Greenl.  Ev. 
§§  26,  27. 

No  mutter  how  conclusive  the  other  testimony  may  appear  to 
be,  the  character  of  the  accused  may  be  such  as  to  create  a  doubt 
in  the  minds  of  the  jury,  and  lead  them  to  believe,  in  view  of  the 
improbabilities  that  a  person  of  such  character  would  be  guilty  of 
the  offense  charged,  that  the  other  evidence  in  the  case  is  false, 
or  the  witnesses  mistaken. 

Evidence  of  this  nature  is  not  a  mere  make-weight  thrown  into 
a  case  to  assist  in  the  production  of  a  result  that  would  happen  at 

596 


EVIDENCE    OF    CHARACTER.  597 

all  events,  but  it  is  positive  evidence,  and  may  of  itself,  by  the 
creation  of  a  reasonable  doubt,  produce  an  acquittal.  Weston  v. 
Com.  Ill  Pa.  251.  And  it  must  be  considered  that,  in  criminal 
trials,  it  is  always  proper  to  prove  the  previous  good  character  of 
the  accused,  in  order  to  show  that  it  was  unlikely  that  such  a  per- 
son would  have  perpetrated  the  crime,  and  this  notwithstanding 
his  good  character  is  presumed  until  it  is  impeached.  His  charac- 
ter is  attacked  by  the  charge  against  him.  But  this  rule  is  ele- 
mentary.    HardtJce  v.  State,  67  Wis.  552;  Whart.  Crim.  Ev.  §  58. 

But,  in  weighing  evidence  of  good  character,  a  jury  should  be 
careful  to  remember  that  all  men  at  some  time  in  their  lives  have 
been  men  of  good  character,  and  that  men  of  previous  good  char- 
acter have  been  known  to  commit  some  of  the  gravest  crimes 
known  to  the  law.  However,  the  law,  in  its  humanity,  says  that 
evidence  is  to  be  received  and  considered  by  the  jury,  and  given 
all  the  weight  that  they  think  it  justly  and  properly  entitled  to, 
and  no  more. 

It  is  not  competent  for  the  government  to  give  in  proof  the 
bad  character  of  the  defendant,  unless  he  first  opens  that  line  of 
inquiry  by  evidence  of  good  character.  Com.  v.  Webster,  5 
Gush.  325,  52  Am.  Dec.  711;  State  v.  Lavage,  57  N.  H.  245,  24 
Am.  Kep.  69. 

§  372.  Record  Evidence  of  Bad  Character  how  Rebutted. — 
Among  the  stereotyped  questions  propounded  to  a  witness  with  a 
view  to  impair  his  credit  is  this,  "Were  you  ever  arrested  and 
convicted  of  such  a  crime  ?"  (naming  the  crime).  In  the  vast 
majority  of  instances  the  interlocutor  has  previous  knowledge  of 
the  facts  and  the  reply  elicited  is  almost  invariably  in  the  affirma- 
tive. This  naturally  creates  unfavorable  presumptions.  It  is  a 
matter  of  no  small  importance  to  the  criminal  bar  of  this  country 
to  know  that  relief  may  be  afforded  in  part  at  least  from  these 
unfavorable  impressions  by  eliciting  upon  the  re-direct  examina- 
tion testimony  from  the  witness  declaratory  of  his  innocence  of 
the  crime  charged  and  this  although  the  record  of  his  conviction 
be  produced.  Such  a  record  is  not  conclusive  of  a  person's  guilt 
(Sims  v.  Sims,  75  N.  Y.  467),  and  the  witness  has  the  right  to 
show  his  innocence  and  relieve  himself  from  the  stigma  of  convic- 
tion.     Wolkqfv.  Teft,  35  N.  Y.  S.  R.  93. 

The  record  of  the  judgment  or  conviction  may  under  some  cir- 
cumstances he  received  in  civil  actions  as  prima  facie  evidence  of 


59S  LAW    OF    EVIDENCE    IN    CRIMINAL   CASES. 

the  fact  of  guilt,  but  never  as  conclusive  or  as  estopping  the  party 
convicted  from  proving  his  innocence. 

One  strong  reason  assigned  for  not  holding  such  records  con- 
clusive is  the  absence  of  any  mutuality  in  the  estoppel.  The 
contusion  which  is  sometimes  perceptible  in  the  cases  on  this  sub- 
ject, results  from  losing  sight  of  the  distinction  between  the  pur- 
poses for  which  such  judgments  are  offered,  whether  as  evidence 
of  the  fact  of  conviction  and  judgment,  or  of  the  fact  of  the  guilt 
of  the  party.  Such  a  judgment  is  conclusive  for  the  purpose  of 
establishing  the  fact  that  it  has  been  rendered,  and  all  the  legal 
consequences  which  tiow  from  it. 

Therefore  when  by  law  the  fact  of  conviction  disqualifies  a  wit- 
ness, the  record,  when  introduced  for  that  purpose,  is  unimpeach- 
able and  the  evidence  is  for  the  court  and  not  the  jury.  When 
offered  for  the  purpose  of  establishing  the  fact  of  guilt  there  is  a 
great  weight  of  authority  for  the  proposition  that  it  is  not  admis- 
sible in  a  civil  case,  but  it  is  well  settled  that  if  admitted  it  is  only 
prima  facie  evidence.     Sims  v.  Sims,  75  X.  Y.  466. 

§  373.  What  Evidence  of  Character  may  Show. — Such  evi- 
dence might  create  a  reasonable  doubt  in  favor  of  the  accused. 
Armor  v.  State,  63  Ala.  173;  Carson  v.  State,  50  Ala.  134;  Fields 
v.  State,  47  Ala.  003,  11  Am.  Rep.  771;  Hall  v.  State,  40  Ala. 
698;  Jupits  v.  People,  34  111.  516;  People  v.  Ashe,  44  Cal.  288; 
People  v.  Fenwick,  45  Cal.  287;  People  v.  Raina,  45  Cal.  292; 
State  v.  Gustafson,  50  Iowa,  194;  State  v.  Lindley,  51  Iowa,  343, 
33  Am.  Rep.  139;  State  v.  Donovan,  61  Iowa,  278;  State  v.  Mc- 
Murphy,  .")!'  Mil  251;  People  v.  Lamb,  2  Keyes,  360;  Stover  v. 
People,  56  K.  Y.  315;  State  v.  Henry,  50  K  C.  65;  Heine  v.  ( 'om. 
91  Pa.  145;  Lee  v.  State,  2  Tex.  App.  338;  State  v.  Daley,  53  Vt. 
442,  38  Am.  Rep.  694.  Or  it  may  be  produced  to  rebut  the  pre- 
sumption arising  from  facts  and  circumstances.  State  v.  Ford,  3 
Strobh.  L.  517,  note}  State  v.  Rodman,  62  Iowa,  456. 

But  the  failure  of  the  accused  to  call  witnesses  as  to  his  charac- 
ter raises  no  presumption  of  bad  character.  State  v.  Dockstader, 
42  Iowa,  436;  Com.  v.  Webster,  5  Gush.  295,  52  Am.  Dec.  711; 
Harrington  v.  State,  19  Ohio  St.  264;  Ormsby  v.  People,  53  N. 
Y.  472;  People  v.  Bodine,  1  Denio,  282;  State  v.  O'Neal,  29  K 
C.  251. 

Where  evidence  of  good  character  has  been  interposed,  it  may 
be  rebutted  by  evidence  of  bad  character  deduced  from  his  own 


EVIDENCE   OF    CHARACTER.  599 

admissions,  but  not  by  proof  of  particular  acts.  Smith  v.  State, 
47  Ala.  540;  McCarty  v.  People,  51  111.  231,  99  Am.  Dec.  542; 
Gordon  v.  State,  3  Iowa,  410;  State  v.  Williams,  77  Mo.  310. 

The  principle  upon  which  good  character  may  be  proved  is, 
that  it  affords  a  presumption  against  the  commission  of  crime. 
This  presumption  arises  from  the  improbability,  as  a  general  rule, 
that  a  person  who  has  uniformly  pursued  an  honest  and  upright 
course  of  conduct  will  deflect  from  it  and  perform  acts  inconsist- 
ent with  such  a  course.  Such  a  person  may  be  overcome  by 
temptation  and  fall  into  crime,  but  the  general  rule  is  fortunately 
•otherwise.  The  influence  of  this  presumption  from  character  will 
necessarily  vary  according  to  the  varying  circumstances  of  differ- 
ent cases.  It  must  be  slight  when  the  accusation  of  crime  is  sup- 
ported by  the  positive  testimony  of  unimpeached  witnesses;  and 
it  will  seldom  avail  to  control  the  mind  in  cases  where  the  testi- 
mony, though  circumstantial,  is  reliable,  strong  and  clear.  But  in 
cases  where  the  other  evidence  in  the  case  is  nearly  balanced,  but 
slightly  preponderating  against  the  defendant,  the  presumption 
from  proof  of  good  character  should  determine  the  result  and 
work  an  acquittal. 

Neither  good  nor  bad  character  can  be  proved  by  specific  acts 
or  charges.  Smith  v.  State,  McCarty  v.  People,  and  Gordon  v. 
State,  supra  J  Engleman  v.  State,  2  Iiid.  91;  People  v.  White,  14 
Wend.  111. 

Where  a  person  is  charged  with  a  crime,  the  failure  to  call  wit- 
nesses to  prove  his  general  good  character  raises  no  presumption 
against  it.  State  v.  Kabrieh,  39  Iowa,  277;  State  v.  O'Neal,  29 
K  C.  251;  People  v.  Bodine,  1  Denio,  282;  People  v.  White,  24 
Wend.  52(>;  State  v.  Dockstader,  42  Iowa,  436. 

§  371.  Always  Available  when  Evidence  is  Circumstantial. 
— Good  character  always  is  in  favor  of  the  prisoner  against  whom 
the  proof  is  circumstantial.  When  there  is  direct  evidence  of 
the  commission  of  a  crime  by  a  prisoner,  then  good  character 
goes  for  naught;  when  the  proof  is  circumstantial,  proof  of  good 
character  is  a  matter  to  be  taken  into  consideration,  and  is  to  have 
a  very  favorable  influence  upon  the  mind  of  the  jury.  Good 
character  of  the  accused  is  to  be  considered  by  the  jury  upon  the 
question  of  the  credibility  of  direct  evidence  of  his  guilt,  the 
same  as  upon  proof  of  circumstances  tending  to  show  it,  or 
the  inferences  to  be  drawn  from  such  circumstances.  Remsen  v. 
People,  43  N.  Y.  6;  Stover  v.  People,  50  K  Y.  315. 


GOO  LAW    OF    EVIDENCE    IN    CRIMINAL    CASES. 

Indeed,  in  a  close  or  doubtful  case,  great  weight  should  be 
attached  to  evidence  of  good  character.  People  v.  Lamb,  2 
Keyes,  360;  2  Abb.  Pr.  .N.  S.  148;  Ccmcemi  v.  People,  16  N.  Y. 
501. 

The  weight  of  modern  authority  seems  to  be  overwhelmingly 
in  favor  of  the  rule  that  proof  of  good  character  constitutes  an 
ingredient  to  be  considered  by  the  jury,  in  all  criminal  cases, 
without  reference  to  the  apparently  conclusive  or  inconclusive 
character  of  the  other  evidence.  See  State  v.  Henry,  50  N.  CL 
65;  Rex  v.  Stannard,  7  Car.  &  P.  673;  Kistler  v.  State,  54  Ind. 
400;  1  Whart.  Am.  Crim.  L.  (7th  ed.)  644. 

§  375.  The  Cases  Examined. — In  Com.  v.  Hardy,  2  Mass. 
303,  it  was  said  that  "  in  doubtful  cases,  a  good  general  character, 
clearly  established,  ought  to  have  weight  with  a  jury,  but  it  ought 
not  to  prevail  against  the  positive  testimony  of  credible  witnesses," 
and  in  Com.  v.  Webster,  5  Cush.  295,  52  Am.  Dec.  711,  a  distinc- 
tion was  taken  between  crimes  "of  great  and  atrocious  criminality" 
and  "smaller  offenses,"  and  it  wras  said  that  "against  facts  strongly 
proved  good  character  cannot  avail,"  and  that  in  the  smaller 
offenses,  such  as  "pilfering  and  stealing,  where  the  evidence  is 
doubtful,  .  .  .  proof  of  character  may  be  given  with  good 
effect." 

If  evidence  of  reputation  is  admissible  at  all,  its  weight  should 
be  left  to  be  determined  by  the  jury  in  connection  with  all  the 
other  evidence  in  the  case. 

It  is  not  permitted  to  the  prosecution  to  attack  the  character  of 
the  prisoner,  unless  he  first  puts  that  in  issue  by  offering  evidence 
of  his  good  character. 

"  Evidence  of  good  character  is  always  admissible  for  the  de- 
fendant in  a  criminal  case;  it  is  to  be  weighed  and  considered  in 
connection  with  all  the  other  evidence  in  the  cause, — it  may  of 
itself,  in  some  instances,  create  the  reasonable  doubt  which  would 
entitle  the  accused  to  an  acquittal.  The  rule  itself  is  not  merely 
merciful.  It  is  both  reasonable  and  just.  There  may  be  cases  in 
which,  owing  to  the  peculiar  circumstances  in  which  a  man  is- 
placed,  evidence  of  good  character  may  be  all  he  can  offer  in  an- 
swer to  a  charge  of  crime.  Of  what  avail  is  a  good  character, 
which  a  man  may  have  been  a  lifetime  in  acquiring,  if  it  is  to 
benefit  him  nothing  in  his  hour  of  peril  ? "  Paxson,  Ch.  J.,  in 
Com.  v.  CUary,  8  L.  R.  A.  301,  135  Pa.  64. 


EVIDENCE    OF    CHARACTER.  601 

In  Stephens  v.  People,  4  Park.  Crim.  Rep.  396,  and  Lowenbery 
v.  People,  5  Park.  Crim.  Rep.  414,  the  jury  was  instructed  that 
good  character  might  raise  the  doubt  entitling  the  prisoner  to  an 
acquittal,  and  the  weight  to  be  given  thereto  was  for  the  jury  in 
each  case.  The  defendant  having  been  found  guilty  in  each  case, 
no  point  was  raised,  as  we  understand,  in  the  appellate  court  as  to 
the  validity  of  the  instructions. 

The  doctrine  announced  in  Com.  v.  Webster,  supra,  has  been 
disapproved  and  condemned  in  Cancemi  v.  People,  16  N.  Y.  501; 
People  v.  Ashe,  44  Cal.  288;  People  v.  Garbutt,  17  Mich.  9,  97 
Am.  Dec.  162;  Harrington,  v.  State,  19  Ohio  St.  264.  The  rule 
of  these  cases  is  sustained  by  State  v.  Henry,  50  N.  C.  65;  Jupitz 
v.  People,  34  111.  516;  State  v.  Me  Murphy,  52  Mo.  251;  United 
States  v.  Whitaker,  6  McLean,  342;  Com.  v.  Carey,  2  Brewst. 
404;  Epps  v.  State,  19  Ga.  102;  Felix  v.  State,  18  Ala.  720;  Car- 
son v.  State,  50  Ala.  134;  Ryan  v.  People,  19  Abb.  Pr.  232. 

In  Wesley  v.  State,  37  Miss.  327,  75  Am.  Dec.  62,  it  is  in  sub- 
stance said  that  good  character  is  no  defense,  and  the  better  course 
is  to  submit  the  question  as  to  its  effect  to  the  jury;  but  it  would 
be  going  too  far  to  lay  it  down  as  a  fixed  rule  that  it  is  sufficient 
to  raise  a  reasonable  doubt. 

This  question  was  somewhat  considered  in  State  v.  Turner,  19 
Iowa,  144.  The  opinion  is  exceedingly  brief,  consisting  of  but  a 
few  lines  so  far  as  this  point  is  concerned,  and  while  it  may  not 
be  clear  and  certain,  yet  we  think  the  only  rule  established  is  "that 
in  all  cases  a  good  character  is  to  be  considered." 

Of  course,  if  the  respondent  sees  fit  to  put  his  character  in  issue 
by  offering  evidence  tending  to  show  that  it  is  good,  it  is  then 
permitted  to  the  prosecution  to  rebut  this  testimony  by  showing 
that  it  is  bad,  but  the  weight  of  authority  is  to  the  effect 
that  this  must  be  done  by  evidence,  not  of  particular  facts,  but  of 
reputation.     State  v.  Lapage,  57  N.  H.  245,  24  Am.  Rep.  69. 

Where  a  party  undertakes  to  show  that  his  reputation  is  good, 
or  that  the  reputation  of  the  other  party  or  a  witness  is  bad,  he 
cannot  put  in  evidence  of  particular  facts  to  prove  the  general 
reputation  he  is  endeavoring  to  establish.  And  to  meet  evidence 
of  general  reputation  the  opposing  party  may  put  in  evidence  to 
the  contrary  of  a  like  general  character.  But  he  cannot  prove 
particular  facts  for  the  reason  that  a  particular  fact  does  not 
necessarily  establish  a  general  reputation  or  fairly  meet  the  issue 


602  LAW    OF    EVIDENCE    IN    CRIMINAL    CASES. 

presented,  and  may  also  raise  collateral  issues;  and  for  the  further 
reason  that  while  a  party  is  presumed  always  to  be  ready  to  de- 
fend his  general  reputation,  he  is  not  expected  to  be  prepared  to 
meet  a  distinct  and  specific  charge.  Peterson  v.  Morgan,  116 
Mass.  350. 

In  a  case  heard  before  all  the  judges  in  England,  it  was  held 
that,- if  evidence  of  good  character  is  given  in  behalf  of  the  pris- 
oner, evidence  of  bad  character  may  be  given  in  reply;  but  in 
either  case  the  evidence  must  be  confined  to  the  prisoner's  general 
reputation  and  the  individual  opinion  of  the  witnesses  as  to  his 
disposition,  founded  on  his  own  experience  and  observation,  is 
inadmissible.  Chief  Justice  Cockburn,  in  delivering  the  opinion  of 
the  court,  says :  "  The  only  way  of  getting  at  it  (his  character) 
is  by  giving  evidence  of  his  general  character  founded  on  his 
general  reputation  in  the  neighborhood  in  which  he  lives."  "  It 
is  quite  clear  that,  as  the  law  now  stands,  the  prisoner  cannot  give 
evidence  of  particular  facts,  although  one  fact  would  weigh  more 
than  the  opinion  of  all  his  friends  and  neighbors.  So,  too,  evi- 
dence of  antecedent  bad  conduct  wTould  form  equally  good  ground 
for  inferring  the  prisoner's  guilt,  yet  it  is  quite  clear  evidence  of 
that  kind  is  inadmissible."  Again,  in  speaking  of  the  limits  of 
rebutting  evidence,  where  the  prisoner  puts  in  evidence  of  good 
character,  he  says :  "I  think  that  that  evidence  must  be  of  the 
same  character  and  confined  within  the  same  limits, — that  as  a 
prisoner  he  can  only  give  evidence  of  a  general  good  character, 
so  the  evidence  called  to  rebut  it  must  be  evidence  of  the  same 
general  description,  showing  that  the  evidence  which  has  been 
given  in  favor  of  the  prisoner  is  not  true,  but  that  the  man's  general 
reputation  is  bad."  The  judges  who  dissented  admitted  that  evi- 
dence of  particular  facts  was  admissible,  but  were  of  opinion  that 
the  testimony  of  a  witness  founded  on  his  own  experience  and 
observation  went  to  show  disposition  and  was  therefore  admissible 
on  the  question  of  character.  Chief  Justice  Erie  said  :  "  I  agree 
that  evidence  of  individual  facts  is  to  be  excluded;  but  whether 
the  answer  given  by  the  witness  in  this  case  is  in  the  nature  of  an 
individual  fact  or  not  I  do  not  stop  to  inquire,  because  a  question 
of  very  general  importance  has  been  raised,  and,  with  reference 
to  that  question,  I  am  of  opinion  that  the  answer,  understood  as 
evidence  of  disposition,  is  admissible."  Reg.  v.  Rototon,  Leigh 
<fc  C.  520,  10  Cox,  C.  C.  25. 


EVIDENCE    OF    CHARACTER.  603 

There  can  be  no  doubt  that  when  a  witness  is  put  upon  the 
stand  to  attack  or  defend  character,  lie  can  only  be  asked  on  the 
■examination  in  chief  as  to  the  general  character  of  the  person 
whose  character  is  in  question,  and  he  will  not  be  permitted  to 
testify  to  particular  facts,  either  favorable  or  unfavorable  to  such 
person,  but  when  the  witness  is  subjected  to  cross-examination,  he 
may  then  be  asked,  with  a  view  to  test  the  value  of  his  testimony, 
as  to  particular  facts.  In  the  eye  of  the  law  the  character  of  a 
person  is  to  be  ascertained  by  an  inquiry  as  to  what  is  generally 
said  or  thought  of  him  in  the  community  where  he  reside.-. 
Hence  when  a  witness  has  testified  on  his  examination  in  chief 
that  the  person,  as  to  whose  character  the  inquiry  is  instituted, 
bears  a  good  character,  his  opinion  and  the  value  of  it  may  be 
tested  by  asking  the  witness  on  his  cross-examination  whether  he 
has  ever  heard  that  the  person,  whose  character  is  in  question,  has 
been  accused  of  doing  acts  wholly  inconsistent  with  the  character 
which  he  has  attributed  to  him.     State  v.  Merriman,  .'54  S.  C.  1A 

"There  are  cases  of  circumstantial  evidence,"  says  Chief  Just  in 
Shaw,  "-where  the  testimony  adduced  for  and  against  a  prisoner  i.- 
nearly  balanced,  in  which  a  good  character  would  be  very  impor- 
tant to  a  man's  defense.  A  stranger,  for  instance,  may  be  placed 
under  circumstances  tending  to  render  him  suspected  of  larceny 
•or  other  lesser  crimes.  He  may  show  that,  notwithstanding  these 
suspicious  circumstances,  he  is  esteemed  to  be  of  perfectly  good 
character  for  honesty  in  the  community  where  he  is  known,  and 
that  may  be  sufficient  to  exonerate  him.  But  where  it  is  a  ques- 
tion of  great  and  atrocious  criminality,  the  commission  of  the  act 
is  so  unusual,  so  out  of  the  ordinary  course  of  things,  and  beyond 
common  experience ;  it  is  so  manifest  that  the  offense,  if  perpe- 
trated, must  have  been  influenced  by  motives  not  frequently  oper- 
ating upon  the  human  mind;  that  evidence  of  character,  and  of 
a  man's  habitual  conduct  under  common  circumstances,  must  be 
considered  far  inferior  to  what  it  is  in  the  instance  of  accusations 
of  a  lower  grade.  Against  facts  strongly  proved,  good  character 
cannot  avail.  It  is  therefore  in  smaller  offenses,  in  such  as  relate 
to  the  actions  of  daily  and  common  life,  as  when  one  is  charged 
with  pilfering  and  stealing,  that  evidence  of  a  higher  character 
for  honesty  would  satisfy  a  jury  that  he  would  not  be  likely  to 
yield  to  such  a  temptation.  In  such  case,  where  the  evidence  [a 
doubtful,  proof  of  character  may  he  given  with  good  effect.      Bui 


604  LAW    OF    EVIDENCE    IN    CRIMINAL   CASES. 

still,  even  with  regard  to  the  higher  crimes,  testimony  of  good 
character,  though  of  less  avail,  is  competent  evidence  to  the  jury,. 
and  a  species  of  evidence  which  the  accused  has  a  right  to  offer. 
But  it  behooves  one  charged  with  an  atrocious  crime,  like  this  of 
murder,  to  prove  a  high  character,  and  by  strong  evidence  to  make 
it  counterbalance  a  strong  amount  of  proof  on  the  part  of  the 
prosecution.  It  is  the  privilege  of  the  accused  to  put  his  charac- 
ter in  issue  or  not.  If  he  does,  and  offers  evidence  of  good  char- 
acter, then  the  prosecution  may  give  evidence  to  rebut  and  coun- 
teract it.  But  it  is  not  competent  for  the  government  to  give  in 
proof  the  bad  character  of  the  defendant,  unless  he  first  opens 
that  line  of  inquiry  by  evidence  of  good  character."  Com.  v. 
Webster,  5  Cush.  324,  52  Am.  Dec.  711;  Trial  of  Prof.  Webster 
(  Bemis'  ed.)  495,  496.     See  State  v.  Tamer,  19  Iowa,  144. 

§  376.  When  Evidence  is  Confined  to  General  Reputation. 
—It  has  often  been  held  that,  on  direct  examination,  the  evidence 
must  be  confined  to  general  reputation;  and  that  no  evidence  is 
allowed  of  particular  acts  of  good  or  bad  conduct,  either  to  sustain 
or  impeach  character.  Jones  v.  State,  76  Ala.  9;  Hussey  v.  State9 
87  Ala.  121.  To  thoroughly  comprehend  the  scope  of  this  rule, 
we  must  understand  the  reasons  upon  which  it  is  founded,  which 
are  the  following:  (1)  Every  person  is  supposed  to  be  capable  at 
any  time  of  sustaining  his  general  reputation;  but  it  would  be 
unreasonable  to  expect  any  one  to  be  prepared,  without  special 
notice,  to  answer  an  assault  on  his  character  imputed  by  particu- 
lar acts  of  bad  conduct.  (2)  To  allow  such  evidence,  moreover, 
would  lead  to  the  mischief  of  raising  any  number  of  collateral 
issues,  the  trial  of  which  might  be  almost  interminable,  and  other- 
wise objectionable  as  diverting  the  mind  of  the  jury  from  the  main 
issue,     2  Taylor,  Ev.  (7th  Eng.  ed.)  §  470. 

While  particular  acts  of  bad  conduct  are  not  admissible  to  assail 
character  on  the  direct  examination,  a  witness  deposing  to  general 
character  may  be  cross-examined  as  to  the  particular  facts,  in  order 
to  test  the  soundness  of  his  opinion,  and  elicit  the  data  on  which 
it  was  founded.  Jackson  v.  State,  78  Ala.  471;  Steele  v.  State,  83 
Ala.  20.  The  same  is  said  generally  by  the  text-writers  on  the 
laws  of  evidence.  1  Taylor,  Ev.  §  352;  2  Stark.  Ev.  304.  By 
this  is  meant,  not  the  truth  of  such  particular  facts,  but  circulat- 
ing rumors  of  them,  which  form  a  part  of  the  general  repute,  and 
help  to  make  up  one's  good  or  bad  character.     This  principle  is 


EVIDENCE    OF    CHARACTER.  605 

illustrated  by  the  old  case  of  Reg.  v.  Wood,  5  Jur.  225,  where  a 
witness  for  a  defendant  who  was  charged  with  highway  robbery, 
having  testified  to  his  good  character,  was  asked  on  cross-exami- 
nation whether  he  had  not  heard  that  the  prisoner  was  suspected 
of  having  committed  a  robbery  in  the  neighborhood  of  a  few 
years  before.  It  was  objected,  that  this  was  a  particular  fact 
raising  a  collateral  issue.  The  objection  was  overruled  by  Baron 
Parke,  who  observed:  "The  question  is  not,  whether  the  prisoner 
was  guilty  of  that  robbery,  but  whether  he  was  suspected  of  hav- 
ing been  implicated  in  it.  A  man's  character  is  made  up  of  a 
number  of  small  circumstances,  of  which  his  being  suspected  of 
misconduct  is  one." 

§  377.  The  English  Rule  Examined. — The  English  rule  in 
reference  to  this  subject  has  been  epitomized  by  Sir  James  Ste- 
phen in  the  following  language:  "In  criminal  proceedings,  the 
fact  that  the  person  accused  has  a  good  character,  is  relevant;  but 
the  fact  that  he  has  a  bad  character,  ...  is  irrelevant. 
In  this  article  the  word  'character'  means  reputation  as  distin- 
guished from  disposition,  and  evidence  may  be  given  only  of 
general  reputation  and  not  of  particular  acts  by  which  reputa- 
tion  or  disposition  is  shown."     Stephen,  Dig.  art.  56. 

"When  a  man  is  prosecuted  for  rape  or  an  attempt  to  ravish,  it 
may  be  shown  that  the  woman  against  whom  the  offense  was 
committed  was  of  a  general  immoral  character,  although  she  is 
not  cross-examined  on  the  subject.  The  woman  may  in  such  a 
case  be  asked  whether  she  has  had  connection  with  other  men, 
but  her  answer  cannot  be  contradicted.  She  may  also  be  asked 
whether  she  has  had  connection  on  other  occasions  with  the 
prisoner,  and  if  she  denies  it  she  (probably)  may  be  contradicted." 
Stephen,  Dig.  (Chase's  ed.)  art.  134. 

Mr.  Chase  in  a  valuable  note  appended  to  the  article  above 
quoted  says :  "  The  cases  in  this  country  are  agreed  that  the 
woman's  bad  general  character  for  chastity  may  be  proved  by  wit 
nesses,  and  also  that  she  may  be  examined  as  to  her  previous  con- 
nection with  the  prisoner.  3  Greenl.  Ev.  £>  214;  Conkey  v.  People, 
1  Abb.  App.  Dec.  US;  Woods  v.  People,  55  N.  V.  515,  11  Am. 
Rep.  309;  State  v.  Forshner,  43  K  II.  89,  80  Am.  Dec.  132,  and 
cases  infra.  But  they  disagree  as  to  whether  particular  acts  of  con- 
nection with  other  men  can  be  proved.  In  many  states  the  right  to 
prove  such  acts  is  denied,  either  by  her  own  examination  or  by  the 


606  LAW    OF    EVIDENCE    IN    CRIMINAL    CASES. 

evidence  of  witnesses  {Com.  v.  Harris,  131  Mass.  336;  State  v. 
Forshnei\  supra;  McComte  v.  State,  8  Ohio  St.  643;  Richie  v. 
State,  58  Ind.  355;  Statt  v.   White,  35  Mo.  500;  State  v.  Turner, 

1  Houst.  Crim.  Rep.  76)  but  in  some  states  such  proof  is  compe- 
tent (State  v.  Reed,  39  Yt.  117,  91  Am.  Dec.  337,  permitting  it 
by  cross-examination;  Benstine  v.  State,  2  Lea,  169,  31  Am.  Rep. 
593;  holding  both  modes  of  proof  allowable,  and  so  People  v. 
Benson,  6  Cal.  221,  65  Am.  Dec.  506;  Strang  v.  People,  24  Mich. 
1).  In  New  York  the  decisions  are  conflicting  (  Woods  v.  People, 
55  N.  Y.  515,  14  Am.  Rep.  309)  but  in  a  civil  action  for  assault 
with  intent  to  ravish,  such  evidence  has  been  received  in  mitiga- 
tion of  damages.  Gulerette  v.  McKinley,  27  Hun,  320;  Watry  v. 
F<  rher,  18  Wis.  501,  SQ  Am.  Dec.  789. 

"In  actions  of  seduction,  the  woman's  bad  character  for  chastity 
may  be  shown  (see  art.  57,  note,  ante),  but  she  cannot  be  cross- 
examined  as  to  acts  of  intercourse  with  other  men  than  the 
seducer  {Hoffman  v.  Kemerer,  44  Pa.  453;  Boyle  v.  Jessup,  29' 
111.  460;  Smith  v.  Tar  y  an,  69  Ind.  445,  35  Am.  Rep.  232,  but 
see  Wandell  v.  Edwards,  25  Hun,  498;  South  Bend  v.  Hardy, 
98  Ind.  577)  unless  a  child  is  born  and  its  paternity  is  in  question. 
See  Smith  v.  Yaryan,  supra.  But  some  cases  hold  that  such 
acts  may  be  proved  by  the  testimony  of  the  men  themselves." 

2  Greenl.  Ev.   §  577;  Ford  v.  Jones,  62  Barb.  484;    White  v. 
Murtland,  71111.  250,  22  Am.  Rep.  100. 

In  a  prosecution  for  rape,  the  character  of  the  woman  for 
chastity  is  involved  in  the  issue,  and  may  be  impeached  by  gen- 
eral evidence  of  her  reputation,  but  particular  instances  of 
criminal  connection  with  other  persons  than  the  defendant  are  in- 
admissible. Com.  v.  Regan,  105  Mass.  593;  Com.  v.  O'Brien, 
119  Mass.  342,  20  Am.  Rep.  325. 

§  378.  When  Evidence  of  Good  Character  is  Unavailing. — 
Where,  however,  the  act  charged  in  the  indictment  is  malum  in 
se,  and  the  evidence  clearly  sustains  it,  and  there  is  an  entire 
absence  of  justifying  circumstances  or  extenuating  facts,  proof  of 
good  character  is  wholly  incompetent  and  irrelevant,  as  it  has  no 
tendency  to  either  prove  or  disprove  any  issue  raised  by  the  in- 
dictment and  evidence  of  this  nature,  if  offered,  should  be  wholly 
disregarded.  Coleman  v.  State,  59  Miss.  484;  Com.  v.  Hardy,  2 
Mass.  317;  State  v.  McMurphy,  52  Mo.  251;  McDaniel  v.  State, 
8  Smedes  &  M.  401;  People  v.  Bell,  49  Cal.  488;  Wesley  v.  State, 


EVIDENCE    OF    CHAKACTEK.  GOT 

37  Miss.  331,  75  Am.  Dec.  62;  State  v.  Northup,  48  Iowa,  583, 
30  Am.  Rep.  408;  United  States  v.  Smith,  2  Bond,  323;  Bennett 
v.  State,  8  Humph.  118;  United  States  v.  Roudi  nbush,  Baldw.  514; 
Hex  v.  Davison,  31  How.  St.  Tr.  217;  United  States  v.  Free- 
man, 4  Mason,  510;  People  v.  Kirby,  1  Wheel.  Crim.  Cas.  64; 
P«opfe  v.  Vane,  12  Wend.  82;  State  v.  Pearee,  15  Nev.  191; 
aS'/V/V  v.  Brown  (note)  3  Strobh.  L.  527;  $tafe  v.  Gleason,  1  Nev. 
173;  A'tate  v.  ITeZfe,  1  N.  J.  L.  628;  People  v.  Josephs,  7  Cal. 
129;  People  v.  Cole,  4  Park.  Crim.  Rep.  35;  People  v.  Roberts,  6 
Cal.  214;  Peopfe  v.  Mitigate,  5  Cal.  127. 

As  regards  the  instructions  of  the  court  with  reference  to  char- 
acter, the  charge  should  be  so  phrased  as  to  clearly  import  to  the 
jury  that  if  upon  the  whole  evidence  that  of  good  character  among 
the  rest,  the  jury  regard  the  crime  conclusively  proven  to  their 
satisfaction  beyond  a  reasonable  doubt,  then  the  good  character 
furnishes  no  defense  and  can  be  of  no  avail  to  defendant.  People 
v.  Sweeney,  133  N.  Y.  609. 

§  379.  The  Rule  Restated. — The  true  rule  is,  that  such  evi- 
dence must,  in  any  event,  be  considered  by  the  jury,  together 
with  the  other  facts  and  circumstances  of  the  case;  it  is  not  merely 
of  value  in  doubtful  cases,  but  will  of  itself,  sometimes,  create  a 
doubt  where  none  could  exist  without  it,  and  if  good  character  be- 
pro  ved  to  the  satisfaction  of  the  jury,  it  should  turn  the  scale  in 
favor  of  the  defendant,  even  in  cases  where,  without  it,  the  whole' 
evidence  would  slightly  preponderate  against  him.  Stephens  v» 
People,  4  Park.  Crim.  Rep.  396;  Cancemi  v.  People,  16  N.  Y. 
501;  2  Russell,  Crimes,  785,  786. 

And  Jewett,  J.,  says  in  People  v.  Gay,  7  N.  Y.  381,  "  that  in 
general  a  party  will  not  be  permitted  to  give  evidence  of  his  wit- 
ness' good  character  until  it  has  been  attacked  on  the  other  side." 
A  party  is  not  allowed  to  sustain  the  character  or  chastity  of  his 
witness  in  advance  of  any  attack.  People  v.  Hulse,  3  Hill,  309; 
People  v.  Gay,  supra;  Russell  v.  Coffin,  8  Pick.  143;  People  v. 
Van  Houter,  38  Hun,  168. 

Nor  is  evidence  of  specific  acts  of  violence  towards  third  per- 
sons admissible.  People  v.  Lamb,  2  Keyes,  371;  lEggler  v.  Peo- 
ple, 56  N.  Y.  643;  Thomas  v.  People,  67  N.  Y.  218. 

Epitomizing  the  present  rules  it  may  bo  advisable  to  cast  them 
into  the  following  propositions: 

1.  It  is  not  permitted  to  the  prosecution  to  attack  the  character 


608  LAW    OF    EVIDENCE    IN    CRIMINAL    CASES. 

of  the  prisoner,  unless  he  first  puts  that  in  issue  by  offering  evi- 
dence of  his  good  character. 

2.  It  is  not  permitted  to  show  the  defendant's  bad  character 
by  showing  particular  acts. 

3.  It  is  not  permitted  to  show  in  the  prisoner  a  tendency  or 
disposition  to  commit  the  crime  with  which  he  is  charged. 

4.  It  is  not  permitted  to  give  in  evidence  other  crimes  of  the 
prisoner,  unless  they  are  so  connected  by  circumstances  with  the 
particular  crime  in  issue  as  that  the  proof  of  one  fact  with  its 
circumstances  has  some  bearing  upon  the  issue  on  trial  other  than 
such  as  is  expressed  in  the  foregoing  three  propositions.  State  v. 
Lavage,  57  N.  H.  245,  24  Am.  Rep.  69. 

In  the  case  of  Com.  v.  O'Brien,  119  Mass.  342,  20  Am.  Rep. 
325,  the  law  in  regard  to  the  admissibility  of  evidence  as  to  char- 
acter is  very  fully  and  satisfactorily  discussed.  The  distinction 
that  the  term  "character"  concerns  what  the  man  is,  and  the  term 
''  reputation"  concerns  what  issaid  of  him,  is  kept  plainly  in  view; 
and  it  is  clearly  shown  that  the  only  legitimate  mode  of  proving 
character  is  by  showing  reputation.     State  v.  Zapage,  supra. 

§  380.  When  Negative  Evidence  of  Character  is  Compe- 
tent.— The  propriety  of  the  rale,  permitting  negative  evidence 
of  good  character,  is  gradually  forcing  itself  upon  the  recognition 
of  the  courts,  and  there  is  a  current  and  modern  authority  rapidly 
forming  in  support  of  it. 

Mr.  Taylor,  in  his  work  on  Evidence,  after  observing  that  the 
term  "character"  is  not  synonymous  with  "disposition,"  but  simply 
means  reputation,  or  the  general  credit  which  a  man  has  obtained 
in  public  opinion,  observes  as  follows  of  the  practice  of  the  English 
judges  to  this  point:  "Aware  that  'the  best  character  is  generally 
that  which  is  the  least  talked  about,'  they  have  found  it  necessary 
to  permit  witnesses  to  give  negative  evidence  on  the  subject,  and 
to  state  that  'they  have  never  heard  anything  against  the  charac- 
ter of  the  person  on  whose  behalf  they  had  been  called.'  "Nay, 
some  of  the  judges,"  he  continues,  "have  gone  so  far  as  to  assert 
that  evidence  in  this  negative  form  is  the  most  cogent  proof  of  a 
man's  good  reputation."  1  Taylor,  Ev.  §  350.  In  support  of  this 
view  he  cites  the  late  case  of  Reg.  v.  Cory,  10  Cox,  C.  C.  23, 
where  Cockburn,  Ch.  J.,  observes:  "I  am  ready  to  admit  that 
negative  evidence  to  which  I  have  referred,  of  a  man  saying  'I 
never  heard  anything  against  the  character  of  the  person  of  whose 


EVIDENCE    OF    CHARACTER.  609 

character  I  come  to  speak,'  should  not  be  excluded.  I  think, 
though  it  is  given  in  a  negative  form,  it  is  the  most  cogent  evi- 
dence of  a  man's  good  character  and  reputation,  because  a  man's 
character  does  not  get  talked  about  until  there  is  some  fault  to  be 
found  with  him.  It  is  the  best  evidence  of  his  character,  that  he 
is  not  talked  about  at  all.  I  think  the  evidence  is  admissible  in 
that  sense." 

A  well  considered  case  in  direct  support  of  this  doctrine  is  that 
of  State  v.  Lee,  22  Minn.  407,  21  Am.  Kep.  7G9,  where  Berry, ,/., 
observes:  "A  very  sensible  and  commendable  instance  of  the 
relaxation  of  the  old  and  strict  rule  is  the  reception  of  negative 
evidence  of  good  character — as,  for  example,  the  testimony  of  a 
witness  who  swears  that  he  has  been  acquainted  with  the  accused 
for  a  considerable  time,  under  such  circumstances  that  he  would 
be  more  or  less  likely  to  hear  what  was  said  about  him,  and  has 
never  heard  any  remark  about  his  character — the  fact  that  a  per- 
son's character  is  not  talked  about  at  all  being,  on  grounds  of 
common  experience,  excellent  evidence  that  he  gives  no  occasion 
for  censure,  or,  in  other  words,  that  his  character  is  good."  It 
was  held  accordingly  that  a  witness  might,  when  a  proper  predi- 
cate of  knowledge  has  been  laid,  be  permitted  to  testify  negative 
to  one's  good  character  by  affirming  that  he  had  never  heard  his 
character  discussed,  or  spoken  of  by  any  one." 

To  the  same  effect  is  Gandolfo  v.  State,  11  Ohio  St.  114,  where 
negative  evidence  of  a  defendant's  good  character  was  allowed  to 
be  given.  "Such  evidence,"  it  was  said,  uis  often  of  the  strongest 
description;  as,  where  a  character  for  truth  is  in  issue,  that  among 
those  acquainted  with  the  party,  it  had  never  been  questioned; 
and  so,  as  to  character  for  peace  and  quietness,  that  among  those 
with  whom  the  party  associates,  no  instance  has  been  known  or 
heard  of,  in  which  he  has  been  engaged  in  a  quarrel." 

In  State  v.  Nelson,  58  Iowa,  208,  the  same  rule  was  recognized, 
and  a  party  was  allowed  to  testify  that  he  had  never  heard  any- 
thing against  the  defendant's  character  or  reputation,  the  court 
observing  that,  in  the  absence  of  such  a  rule,  "a  person,  who  had 
lived  so  far  a  blameless  life  as  to  provoke  but  little  discussion 
respecting  his  character  would  oftentimes  be  utterly  unable  to 
support  his  character  when  assailed." 

So  in  Davis  v.  Foster,  68  In  I.  258,  an  instruction  to  the  jury 
was  held  good,  which  asserted  that,  "if  a  man's  neighbors  say 
39 


610  LAW    OF    EVIDENCE    IN    CRIMINAL    CASES. 

nothing  whatever  about  him,  as  to  his  truthfulness,  that  fact  of 
itself  is  evidence  that  his  general  reputation  for  truth  is  good." 
And  in  Davis  v.  Frarike,  33  Gratt.  413,  a  witness  who  had  an 
opportunity  to  know  another's  character  was  allowed  to  testify 
that  he  never  heard  it  called  in  question,  Staples,  J.,  observing: 
"Possibly,  in  many  cases,  the  highest  tribute  that  can  be  paid  to 
the  witness  is  that  his  reputation  as  a  man  of  veracity  is  never 
called  in  question,  or  even  made  the  subject  of  conversation  in  the 
community  where  he  resides." 

In  Childs  v.  State,  55  Ala.  28,  a  witness,  who  claimed  to  know 
the  character  of  another  witness,  "but  never  heard  his  character 
discussed,"  was  held  competent  to  speak  to  the  question  of  char- 
acter. A  like  principle  was  declared  in  Had  jo  v.  Gooden,  13 
Ala.  718. 

In  Reid  v.  Rcid,  17  N.  J.  Eq.  101,  much  of  the  evidence  as  tc- 
the  character  of  the  witness  was  founded  on  opinions  expressed 
by  others  after  their  examination,  and  a  material  portion  was  fur- 
nished by  a  person  who  made  inquiries  in  the  neighborhood  of 
their  residence  for  the  purpose  of  procuring  evidence  in  the  cause. 
It  is  said:  "All  this  evidence  is  clearly  incompetent.  No  rule  is 
better  settled,  or  founded  on  clearer  principles,  than  that  which 
excludes  all  testimony  touching  reputation  founded  on  opinion 
expressed  post  litem  motam.  Not  only  should  the  character  of 
the  witness  be  founded  on  reputation  previously  existing,  but  a. 
stranger  sent  by  a  party  to  the  neighborhood  of  the  witness,  to- 
learn  his  character,  will  not  be  permitted  to  testify  as  to  the  result 
of  his  inquiries." 

A  very  sensible  and  commendable  instance  of  the  relaxation  of 
the  old  and  strict  rule  is  the  reception  of  negative  evidence  of 
good  character — as  for  example,  the  testimony  of  a  witness  who 
swears  that  he  has  been  acquainted  with  the  accused  for  a  consid- 
erable time,  under  such  circumstances  that  he  would  be  more  or 
less  likely  to  hear  what  was  said  about  him,  and  he  has  never 
heard  any  remark  about  his  character, — the  fact  that  a  person's 
character  is  not  talked  about  at  all  being,  on  grounds  of  common 
experience,  excellent  evidence  that  he  gives  no  occasion  for  cen- 
sure, or  in  other  words,  that  his  character  is  good.  Reg.  v.  Row- 
ton,  10  Cox,  C.  C.  25,  2  Hurd,  Crim.  Cas.  333;  Gandolfo  v.  State, 
11  Ohio  St.  114;  State  v.  Lee,  22  Minn.  407,  21  Am.  Kep.  769. 

That  reputation  may,  with  justice,  well  be  called  good  which 


EVIDENCE    OF    CHARACTER.  611 

no  slanderer  has  ever  ventured  to  even  as  much  as  question.  A 
blameless  life,  oftentimes,  though  not  always,  gives  origin  to  such 
a  reputation.  But  when  it  can  be  said  of  a  man,  by  those  well 
acquainted  with  him,  that  they  never  heard  his  reputation  as  to 
truth  and  morals  discussed,  denied  or  doubted,  it  is  equivalent  to 
passing  upon  him  the  highest  enconium.  The  authorities  abun- 
dantly establish  that  the  person  testifying  need  not  base  his  means 
of  knowledge  on  what  is  "generally  said"  of  the  person  whose 
character  is  in  question,  but  may  base  his  knowledge  of  the  repu- 
tation of  such  person  on  evidence  of  the  negative  nature  above 
noted.  Lemons  v.  State,  4  W.  Va.  755,  6  Am.  Rep.  293;  Gan- 
dolfo  v.  State,  supra;  Cockburn,  Ch.  J.,  in  Reg.  v.  Boioton,  1 
Leigh  &  C,  536;  State  v.  Grate,  68  Mo.  22;  Kelly,  Crim.  L.  §  241. 
See  1  Rice,  CivD  Evidence,  p.  629. 


CHAPTER  XLYI. 
EVIDENCE  OF  FORMER  JEOPARDY  OR  CONVICTION. 

§  381.  Doctrine  of  Autrefois  Acquit  and  Convict  Examined. 

382.  How  Question  is  Determined. 

383.  Views  of  Mr.  Bishop. 

384.  Evidence  that  Jury  were  Discharged  is  Equivalent  to  an 

Acquit  tul. 

385.  Miscellaneous  Authorities  Examined. 

§  381.  Doctrine  of  Autrefois  Acquit  and  Convict  Exam- 
ined.— The  provision  of  the  Constitution  of  the  United  State.-, 
that  no  person  shall  be  twice  put  in  jeopardy  of  life  or  limb 
for  the  same  offense,  is  an  explicit  and  solemn  recognition  of 
the  maxim  of  the  common  law  that  no  man  shall  be  twice  tried 
for  the  same  offense;  and  the  test  by  which  the  courts  determine 
whether  a  person  has  been  once  in  jeopardy,  or  once  already  tried, 
is  whether  a  plea  of  autrefois  acquit  or  autrefois  convict  can  be 
sustained,  according  to  the  rules  of  the  common  law.  People  v. 
Goodwin,  18  Johns.  1ST;  Story,  Const.  §  1787. 

There  is,  it  must  be  allowed,  at  least  a  seeming  inconsistency  in 
the  language  of  the  authorities  upon  the  question.  Mr.  Justice 
Blackstone  (4  Bl.  Com.  336)  says  that  the  plea  of  a  former  con- 
viction for  the  same  identical  crime,  though  no  judgment  was 
ever  given  or  perhaps  ever  will  be  (being  suspended  by  the  bene- 
fit of  clergy  or  for  other  causes)  is  a  good  plea  in  bar  to  an 
indictment.  On  the  other  hand.  Sir  Matthew  Hale  (Hale,  P.  C, 
248)  cites  Vaux's  Case,4:  Coke,  Rep. 45,  as  holding  that  autrefois 
convict  by  verdict  is  no  plea,  unless  judgment  be  given  upon  the 
conviction.  In  the  opinion  of  Chief  Justice  Spencer,  in  the  case 
of  People  v.  Goodwin,  supra,  he  says,  speaking  of  a  plea  of  a 
former  acquittal,  that,  to  render  it  a  bar,  there  must  have  been  a 
legal  acquittal  by  judgment  upon  a  trial  for  the  same  offense  and 
the  verdict  of  a  petit  jury.  Chitty,  in  his  Criminal  Law  (vol.  1, 
p.  462)  speaks  somewhat  less  distinctly  of  a  sentence  or  judgment. 
being  requisite.  He  says,  "  the  crime  must  be  the  same  for  which 
the  defendant  was  bef ore  convicted,  and  the  conviction  must  have 
been   lawful,  on  a  sufficient  indictment;    and  it  he  has  neither 

612 


EVIDENCE   OF   FORMER   JEOPARDY    OK   CONVICTION.  613 

received  sentence  nor  prayed  the  benefit  of  clergy,  this  plea  is 
said  not  to  be  pleadable  if  the  former  indictment  were  invalid." 
There  would  seem  to  be  a  practical  injustice,  and  an  inconsist- 
ency with  the  meaning  and  spirit  of  the  common  law  rule,  as 
adopted  by  the  constitutional  provision  in  this  country,  in  de- 
manding that  a  prisoner  should  have  received  sentence  in  all  cases 
before  he  should  be  allowed  to  plead  that  he  had  been  once  con- 
victed, or  had  been  once  in  jeopardy  for  the  same  offense.  Rex 
v.  Bowman,  6  Car.  &  P.  101;  State  v.  Eldea,  41  Me.  165;  Com. 
v.  Roby,  12  Pick.  496. 

Pleas  of  the  kind  must  allege  that  the  former  trial  was  in  a 
court  having  jurisdiction  of  the  case,  and  that  the  person  and  the 
offense  are  the  same,  and  must  set  forth  the  former  record,  else 
the  plea  will  be  bad.  Rex  v.  Wildey,  1  Maule  &  S.  188;  2  Rus- 
sell, Crimes  (4th  ed.)  60;  Rex  v.  Edwards,  Puss.  &  R.  224. 

Standard  authorities  which  show  that  the  plea  of  a  former  con- 
viction or  acquittal  must  set  forth  the  substance  of  the  record  are 
very  numerous  and  decisive.  Where  the  plea  is  autrefois  convict, 
it  must  appear  that  the  prisoner  received  sentence  as  required  by 
law;  or  if  the  plea  be  autrefois  acquit,  it  must  appear  that  the 
court  gave  the  order  that  he  go  without  day.  Roscoe,  Crim. 
Ev.  (8th  ed.)  199. 

Defenses  of  the  kind  are  often  set  up;  and  in  order  to  avoid 
false  pretenses,  the  established  rule  is,  that  the  accused  is  required 
not  only  to  show  the  nature  of  the  former  prosecution  and  the 
conviction  or  acquittal  with  certainty  in  his  plea,  but  also  to  show 
the  record  or  its  substance  to  the  court,  by  producing  or  vouching 
it  at  the  time  he  pleads,  for  otherwise  it  would  be  in  his  power  to 
delay  the  trial  when  he  pleased  by  pleading  a  former  conviction 
or  acquittal  in  another  jurisdiction;  and,  in  order  to  prevent  such 
false  pretenses  in  pleading,  the  requirement  is,  that  the  plea  shall 
show  the  record,  or  vouch  it  if  it  be  in  the  same  court  in  the  first 
instance,  and  that  he  is  not  allowed  to  wait  until  nul  tiel  record  is 
pleaded  by  the  prosecutor.     2  Stark.  Crim.  PL  350. 

The  rule  may  be  stated  to  be,  that,  to  make  the  plea  a  bar, 
proof  of  the  facts  alleged  in  the  second  indictment  must  be 
sufficient  .in  law  to  have  warranted  a  conviction  upon  the  first 
indictment  of  the  same  offense  charged  in  the  second,  and  not  oi 
a  different  offense.  The  general  rule  adopted  for  ascertaining 
the  identity  of  the  offenses  is  as  stated  by  Archbold  in  his  work 


614  LAW    OF    EVIDENCE    IN    CRIMINAL    CASES. 

on  Criminal  Pleading,  p.  106,  where  it  is  said:  "The  true  test 
by  which  the  question  whether  the  plea  is  a  bar  in  any  particular 
may  be  tried  is,  whether  the  evidence  necessary  to  support  the 
second  indictment  would  have  been  sufficient  to  procure  a  legal 
conviction  on  the  first."  Substantially  the  rule  has  been  stated  in 
the  same  way  by  Chitty  in  his  work  on  Criminal  Law.  Campbell 
v.  People,  109  111.  565,  50  Am.  Rep.  621. 

"To  sustain  this  plea  (autrefois  convict  or  acquit),  it  is  not 
sufficient  simply  to  put  in  the  former  record;  some  evidence  must 
be  given  that  the  offenses  charged  in  the  former  and  present  in- 
dictments are  the  same.  This  may  be  done  by  showing,  by  some 
person  present  at  the  former  trial,  what  was  the  offense  actually 
investigated  there;  and,  if  that  is  consistent  with  the  charge  in 
the  second  indictment,  a  presumptive  case  will  thus  be  made  out, 
which  must  be  met  by  proof  on  the  other  side,  of  the  diversity  of 
the  two  offenses."  Wilson  v.  State,  45  Tex.  77,  23  Am.  Rep. 
602;  1  Bishop,  Crim.  Proc.  §  816. 

It  is  the  settled  law  that  an  acquittal  on  one  indictment,  in 
order  to  be  a  good  defense  to  a  subsequent  indictment,  must  be 
an  acquittal  of  the  same  identical  offense  as  that  charged  in  the 
second  indictment.  That  fact  must  in  some  way  appear  from  the 
plea  itself,  and  that  the  offenses  charged  in  both  cases  were  the 
same  in  law  and  in  fact.  Com.  v.  Iiohy,  12  Pick.  496.  The 
question  must  be  determined  by  the  facts  appearing  from 
the  record,  without  the  aid  of  extrinsic  circumstances. 

What  constitutes  legal  jeopardy  has  led  to  much  discussion  and 
diverse  constructions.  By  most  courts  the  constitutional  pro- 
visions forbidding  that  any  person  be  subject  for  the  same  offense 
to  be  twice  put  in  jeopardy  (U.  S.  Const.  Amendments,  art.  5  ; 
N.  Y.  Const,  art.  1,  §  6)  are  construed  to  mean  nothing  more  than 
the  common  law  rule  as  applied  in  the  plea  of  autrefois  acquit. 
In  such  construction  there  must  have  been  a  final  verdict  of  con- 
viction or  acquittal  upon  a  valid  indictment.  Such  is  the  rule  in 
the  United  States  courts  {United  States  v.  Gilbert,  2  Sumn.  41); 
in  Massachusetts  {Com.  v.  Bowen,  9  Mass.  494);  in  New  York 
{Shepherd  v.  People,  25  X.  Y.  406);  and  in  many  other  states,  as 
may  !>c  seen  by  reference  to  1  Whart.  Am.  Crim.  L.  §§  482-587. 
In  other  courts  and  in  other  states  a  very  technical  rule  is  adopted. 

The  words,  by  the  law  of  the  land,  as  used  originally  in  Magna 
Charta,  in  reference  to  this  subject,  are  understood  to  mean  due 


EVIDENCE    OF    FORMER   JEOPARDY    OR   CONVICTION.  615 

process  of  law,  that  is,  by  indictment  or  presentment  of  good 
and  lawful  men;  and  this,  says  Lord  Coke,  is  the  true  sense  and 
exposition  of  those  words.  The  better  and  larger  definition  of 
due  process  of  law,  is  that  it  means  law  in  its  regular  course  of 
administration,  through  courts  of  justice.  3  Story,  Const.  264,  661; 
1  Kent,  Com.  pt.  IV.,  p.  13. 

It  is  well  settled,  by  abundant  authority,  that  a  person  charged 
with  the  commission  of  a  criminal  offense,  may  waive  any  irregu- 
larity which  exists  in  the  case.  He  may  waive  a  constitutional 
provision  which  is  intended  for  his  benefit.  He  may  waive  a  trial 
by  jury;  he  may  waive  a  plea  of  autrefois  acquit  by  not  inter- 
posing it.  He  may  also  waive  any  matter  of  form  or  substance, 
■excepting  only  what  may  relate  to  the  jurisdiction  of  the  court. 
Piersa-ti  v.  People,  79  N.  Y.  424. 

§  382.  How  Question  is  Determined. — Obviously  the  most 
conclusive  evidence  the  defense  can  furnish,  is  the  record  of  the 
former  conviction,  and  this  seems  to  be  required  under  the  Mis- 
souri law.  State  v.  Rugan,  6S  Mo.  214.  But  as  this  rule  would 
impose  an  unnecessary  hardship  upon  the  defense,  it  is  well  settled 
in  most  jurisdictions,  that  the  record  of  the  judgment  is  not  abso- 
lutely essential.  The  identity  of  the  two  offenses  may  be  estab- 
lished by  either  record  or  parol  evidence.  State  v.  Maxwell,  51 
Iowa,  314;  Dunn  v.  State,  70  Ind.  47;  Mount  v.  State,  14  Ohio, 
295,  45  Am.  Dec.  542. 

Whether  the  accused  has  been  previously  tried  for  the  same 
offense  is  a  question  to  be  determined  partly  by  the  record  of  the 
previous  trial,  and  partly  by  parol  evidence  in  connection  with  it 
for  the  purpose  of  identification.  The  burden  of  maintaining  the 
defense  of  former  jeopardy  is  upon  the  person  pleading  it;  the 
record  of  a  conviction  of  one  of  the  same  name  raises  a  presump- 
tion of  identity,  and  where  the  offense  proved  on  the  former  trial 
corresponds  with  that  alleged  in  the  complaint,  the  presumption 
is  that  they  are  the  same.  While  the  record  of  the  former  trial 
is  necessary,  if  it  is  not  accompanied  by  other  evidence,  it  will  be 
insufficient  to  sustain  the  plea,  it  being  equally  necessary  to  pro- 
duce proof  that  the  former  prosecution  was  tor  the  same  offense, 
and  it  must  not  only  show  that  jeopardy  had  once  attached,  but 
also  that  it  had  not  been  discharged  by  operation  of  law  or  waived 
by  some  act  of  the  defendant.  Am.  &  Eng.  Enc.  Law,  title 
Jeopardy,  citing    Bailey  v.  State,  20  (Ja.  579;   Campbell  v.  State, 


616  LAW    OF    EVIDENCE    IN    CRIMINAL    CASES. 

109  111.  565;  Walter  v.  State,  105  Ind.  589;  Marshall  v.  State,  & 
Ind.  498;  Grisham  v.  State,  19  Tex.  App.  504;  Emerson  v.  State, 
43  Ark.  372;  Swalley  v.  People,  2  West.  Rep.  391,  116  111.  247;. 
Dunn  v.  State,  70  Ind.  47;  Com.  v.  Dillane,  11  Gray,  67;  1  Bishop, 
Crim.  L.  §  1050;  Whart.  Crim.  PL  &  Pr.  §  481;  F<9W^Z.s  v.  Com. 
83  Ky.  193;  State  v.  JTeto,  11  Mo.  App.  91,  76  Mo.  505;  Bayer  v. 
State,  16  Ind.  451;  Hensley  v.  State,  107  Ind.  587. 

§  383.  Yiews  of  Mr.  Bishop.— Mr.  Bishop  well  expresses  the 
prevailing  juridical  view  in  so  far  as  evidence  of  a  former  convic- 
tion is  concerned  in  the  following  language:  "The  former  record 
is  produced,  and  for  what  is  provable  thereby  it  is  conclusive. 
Nor  can  the  matter  of  the  record  be  proved  otherwise  than  by 
itself.  There  must  be  no  variance  between  it  and  the  plea.  The 
identity  of  the  parties  and  of  the  offense  is  established  by  parol 
testimony.  ...  If  the  identity  alike  of  the  parties  and  of 
the  offense  is  conceded,  it  becomes  a  question  for  the  court, 
whether  or  not  there  has  been  a  previous  conviction  or  acquittal." 

1  Bishop,  Crim.  Proc.  £  816.  This  is  in  entire  accord  with  the 
ancient  common  law  authorities.     2  Hale,  P.  C.  241;  Rex  v.  Sheen, 

2  Car.  &  P.  635. 

§  384.  Evidence  that  Jury  were  Discharged  is  Equivalent 
to  an  Acquittal. — It  is  well  established  that  the  discharge  of  a 
jury  in  a  criminal  case  without  the  consent  of  the  defendant,  after 
it  has  been  duly  impaneled  and  sworn,  but  before  verdict,  is 
equivalent  to  a  verdict  of  acquittal,  unless  the  discharge  was 
ordered  in  consequence  of  such  necessity  as  the  law  regards  as 
imperative,  and  that  in  such  case  the  record  must  show  the  exist- 
ence of  the  necessity  which  required  such  discharge,  otherwise 
the  defendant  will  be  exonerated  from  the  liability  of  further 
answering  to  the  indictment.  Hints  v.  State,  24  Ohio  St.  134; 
Mitchell  v.  State,  42  Ohio  St.  383;  Adams  v.  State,  99  Ind.  244; 
p.nr,  11  v.  State,  17  Tex.  App.  345;  Whitten  v.  State,  61  Miss. 
717;  Maden  v.  Emmons,  83  Ind.  331;  State  v.  Connor,  5  Coldw. 
311;  St,  wart  v.  State,  15  Ohio  St.  155;  Dobbins  v.  State,  14  Ohio 
St.  4'.':;:  Wright  v.  State,  5  Ind.  290,  61  Am.  Dec.  90;  Poage  v. 
State,3  Ohio  St.  229;  State  v.  Walker,  26  Ind.  346;  Rulo  v.  State, 
19  Ind.  298;  Grant  v.  People,  4  Park.  Crim.  Rep.  527;  McCorkle 
v.  State,  14  Ind.  39. 

§  385.  Miscellaneous  Authorities  Examined. — Former  ac- 
quittal, to  be  available  as  a  defense,  must  be  specially  pleaded; 


EVIDENCE    OF    FOKMER   JEOPAKDY    OK    CONVICTION.  617 

the  plea  is  not  admissible  under  the  general  issue.  Rickles  v. 
State,  68  Ala.  538;  State  v.  Morgan,  95  N.  C.  641. 

Where  the  two  trials  of  the  same  case  were  in  the  same  court, 
it  is  not  essential  to  interpose  such  pleas.  Foster  v.  State,  25  Tex. 
App.  544;  Robinson  v.  State,  21  Tex.  App.  160. 

As  to  former  jeopardy,  see  Com.  y.Fitzpatrich,  1  L.  K.  A.  451, 
121  Pa.  109. 

The  plea  of  former  acquittal  is  good  only  where  the  evidence 
necessary  to  support  the  second  indictment  would  have  been  suffi- 
cient to  procure  a  legal  conviction  on  the  first.  HUands  v.  Com. 
5  Cent.  Kep.  267,  114  Pa.  372;  Com.  v.  Trimmer,  84  Pa.  69. 

It  applies  where  the  transaction  is  the  same  and  must  be  estab- 
lished by  the  same  proof.     Shubert  v.  State.  21  Tex.  App.  551. 

An  acquittal  under  an  indictment  for  larceny  is  a  bar  to  a  sub- 
sequent indictment  alleging  ownership  in  a  different  person  and 
the  taking  on  a  different  day.  Goode  v.  State,  70  Ga.  752;  P>  opU 
v.  Goodwin,  18  Johns.  2u5;  Com.  v.  Bowden,  9  Mass.  194;  Com. 
v.  Purchase,  2  Pick.  525. 

Nor  is  such  a  party  put  in  legal  jeopardy  if  the  term  of  the 
court,  as  fixed  by  law,  comes  to  an  end  before  the  trial  is  finished. 
State  v.  Brooks,  3  Humph.  ~rl:  Mahala  v.  State,  10  Yerg.  532, 
31  Am.  Dec.  591;  State  v.  Battle,  7  Ala.  261;  Be  Spier,  12  N. 
C.  491;  Wright  v.  State,  5  Ind.  292,  61  Am.  Dec.  90;  Cooley, 
Const.  Lim.  (4th  ed.)  4<»4.  Nor  if  the  jury  are  discharged  before 
verdict,  with  the  consent  of  the  accused,  expressed  or  implied. 
State  v.  Slack,  6  Ala.  676.  Nor  if  the  verdict  is  set  aside  on  mo- 
tion of  the  accused,  nor  on  writ  of  error  sued  out  in  his  behalf. 
State  v.  Redman.  17  Iowa,  329.  Nor  in  case  the  judgment  is  ar- 
rested on  his  motion.     People  v.  Casborus,  13  Johns.  351. 

The  authorities  in  support  of  the  doctrine  that  the  effect  of 
granting  a  new  trial  on  the  application  of  the  defendant  is  the 
same  in  a  criminal  as  in  a  civil  case,  and  opens  the  whole  cause 
for  retrial  upon  the  same  issues  as  on  the  first,  are  collected  in  the 
case  of  State  v.  Behimer,  20  Ohio  St.  572.  It  seems  to  us,  how- 
ever, more  in  harmony  with  the  humane  maxims  of  the  criminal 
law  and  the  principles  of  the  constitution,  to  hold  that  the  find- 
ing of  the  jury  acquitting  the  defendant  of  the  higher  offense 
was  an  adjudication  upon  that  charge,  and  that  legal  effect  should 
be  given  to  it  as  Buch,  while  the  new  trial  should  be  limited  to 
the  lower  degree  of  homicide  of  which  he  had  been  convicted. 


613  L.VW    OK    EVIDENOK    IN    CKIMLNAL    CASKS. 

In  the  case  of  Wilson  v.  State,  24  Conn.  57,  after  an  exhaustive 
examination  of  the  question,  it  was  held  that  the  conviction  of  a 
person  for  petit  larceny  committed  at  the  same  time  a  burglary 
was  committed,  was  not  a  bar  to  a  subsequent  prosecution  for  the 
burglary;  and  in  case  of  Com  v.  Roby,  12  Pick.  496,  it  was  held 
that  a  plea  in  bar  is  bad  if  the  offenses  charged  in  the  two  indict- 
ments be  perfectly  distinct  in  point  of  law,  however  closely  they 
may  be  connected  in  point  of  fact.    State  v.  Martin,  76  Mo.  337. 

In  Jones  v.  State,  13  Tex.  168,  62  Am.  Dec.  550,  the  prisoners 
were  indicted  for  murder  in  the  first  degree;  they  were  tried  on 
the  plea  of  not  guilty,  and  found  guilty  by  the  jury  of  murder 
in  the  second  degree.  A  new  trial  was  granted  on  their  motion, 
and  tluw  were  tried  a  second  time  and  convicted  for  murder  in 
the  first  degree.  On  appeal  to  the  supreme  court  of  Texas,  the 
judgment  was  reversed.  Mr.  Justice  Lipscomb,  who  delivered 
the  "pinion  of  the  court,  after  examining  the  authorities,  said: 
"  The  result  of  our  investigation  is,  that  both  on  principle  and  the 
authority  of  adjudged  cases,  the  appellants,  after  having  been 
acquitted  of  murder  in  the  first  degree,  and  found  guilty  of  mur- 
der in  the  second  degree,  could  not  be  legally  tried  and  convicted 
of  murder  in  the  first  degree,  and  that  the  verdict  so  finding 
them  cannot  stand  as  the  basis  of  a  judgment  and  execution 
thereon." 

In  State  v.  Tweedy,  11  Iowa,  351,  the  accused  was  indicted  for 
murder  in  the  second  degree,  and  found  guilty  of  manslaughter. 
The  judgment  was  reversed  on  appeal,  and  the  cause  remanded 
for  trial  again.  On  the  second  trial,  the  court  refused  to  instruct 
the  jury  that  he  had  once  been  acquitted  of  murder,  and  could 
only  be  tried  again  for  manslaughter.  The  case  went  again  to 
tlif  supreme  court,  and  in  a  very  able  review  of  the  authorities  by 
Mr.  Justice  Wright,  it  was  held  that  the  verdict  of  manslaughter, 
on  the  first  trial,  was  an  acquittal  of  murder  in  the  second  degree, 
and  that  the  prisoner  could  not  again  be  put  in  jeopardy  for  that 
offense.  The  court  said  :  "When  the  prisoner  moved  for  a  new 
trial,  ami  appealed  to  this  court,  he  sought  to  be  relieved  of  a 
judgment  against  him  for  manslaughter.  He  had  no  complaint 
to  make  that  the  jury  had  not  convicted  him  in  the  offense  of 
murder.  If,  however,  he  might  properly  be  subjected  to  a  second 
trial  for  murder,  then  he  is  compelled  to  submit  to  a  verdict 
which  he  may  deem  ever  so  erroneous,  lest  by  disturbing  it,  when 


EVIDENCE    OF    FORMER   JEOPARDY    OR   CONVICTION.  619 

insisting  on  his  legal  rights,  he  may  place  himself  again  in  jeop- 
ardy. When  a  jury  has  once  returned  a  verdict  of  guilty  as  to 
the  lower  offense,  the  prisoner  should  not,  in  our  opinion,  be 
placed  in  a  position  of  additional  hazard,  by  attempting  to  be 
relieved  of  the  erroneous  judgment.  It  is  settled,  upon  authority, 
that  if  he  obtains  a  new  trial  he  may  be  again  tried  for  the  offense 
■of  which  he  was  convicted.  It  is  a  very  different  thing,  however 
when  it  is  sought  to  try  him  for  the  offense  of  which  he  was  not 
•convicted,  and  which  was  not  necessarily  in  the  verdict  of  guilty." 
Johnson  v.  State,  21)  Ark.  31,  21  Am.  Rep.  154. 


CIIAPTEK  XL VII. 

DRUNKENNESS,  INFANCY  AND  COVERTURE  AS  AN  EXCUSE 

FOR  CRIME. 

§  386.  Preliminary  Statement. 

387.  Drunkenness  no  Excuse  for  Crime. 

388.  Presumption  of  Sanity  Obtains. 

389.  New  York  Code  Provisions. 

390.  Statement  of  the  General  Rule. 

391.  Instance  of  its  Availability. 

392.  A  Distinction  Noted. 

393.  Non-aye  as  an  Excuse  for  Crime. 

394.  The  Authorities  Examined. 

395.  Evidence  of  Marital  Coercion  as  an  Excuse. 

§  386.  Preliminary  Statement. — The  contention  so  frequently 
forced  upon  the  attention  of  our  jurists  to  the  effect  that  the  sod- 
den condition  of  the  accused  should  operate  an  extenuation  of  his 
(au It,  is  a  phenomena  in  criminal  prosecution  that  should  be 
suppressed. 

However  strong  the  argument  may  be  in  the  forum  of  con- 
science, in  the  dispensation  of  criminal  justice  it  can  find  no  place. 
It  would  not  do  to  expose  society  to  a  doctrine  so  pernicious  as 
this.  It  would  never  answer  to  say  that  a  party  who,  in  a 
drunken  freak,  comes  into  your  house  and  murders  you  whilst 
you  are  harmless  and  inoffensive  shall  go  free  and  unpunished. 
Life  is  too  sacred  and  too  dear — too  valuable  a  gift  from  the 
Father  and  source  of  all  life  to  be  taken  in  this  manner.  The 
books  contain  but  one  rule  upon  this  question  from  the  earliest 
time  down  to  the  present,  and  that  is,  if  a  person  voluntarily  be- 
comes drunk  he  shall  be  accountable  for  what  he  does  while  in 
that  condition.  It  does  not  avail  the  accused  that  he  did  the  un- 
lawful act  in  the  spirit  of  mere  drunken  bravado.  Human  life 
cannot  be  so  cheapened  as  to  permit  voluntary  drunkenness  to 
shield  an  accused  person  who,  in  the  commission  of  an  unlawful 
act,  unintentionally  takes  another's  life.  Surber  v.  /State,  99  Ind. 
71.     This  sufficient  reason  locates  the  law  governing  the  subject.. 

§  387.  Drunkenness  no  Excuse  for  Crime. — Modern  criminal 

620 


LUCU.NK.ENNESS,  INFANCY  AND  00VI5KTUSE  AS  EXCUSE.  621 

jurisprudence  has  long  recognized  the  presence  of  an  inexorable 
law,  which  refuses  to  admit  mere  intoxication  as  an  excuse  for 
crime.  Tidwell  v.  Stats,  70  Ala.  33;  State  v.  Bullock,  13  Ala. 
413;  Friery  v.  People,  51  Barb.  319;  People  v.  Robinson,  1 
Park.  Crim.  Rep.  649;  State  v.  Thompson,  12  Nev.  110;  Shanna- 
han  v.  Com.  8  Bush,  461;  State  v.  Turner,  Wright  (Ohio)  20; 
United  States  v.  Drev),  5  Mason,  28;  Boswdl  v.  Com.  20  Graft. 
860;  State  v.  Mullen,  14  La.  Ann.  577;  Eafferty  v.  People,  66 
111.  118;  McKenzie  v.  State,  26  Ark.  335;  State  v.  Keaih,  S3  N. 
C.  626;  Peoph  v.  Williams,  43  Cal.  344;  tfAwce  v.  State,  31  Ga. 
421;  AV'/A'  v.  Hurley,  1  Houst.  Crim.  Cas.  28;  People  v.  Porter, 
2  Park.  Crim.  Rep.  14;  Mercer  v.  tftate,  17  Ga.  146;  People  v. 
H '///>//,  2  Park.  Crim.  Rep.  19;  Estes  v.  State,  55  Ga.  30;  State 
v.  Harlow,  21  Mo.  446;  Marshall  v.  $tafe,  59  Ga.  154;  iVvyyA 
v.  Puller,  2  Park.  Crim.  Rep.  16;  Kenny  v.  People.  31  N.  Y. 
330;  O'Brien  v.  People,  48  Pari).  274;  Com.  v.  Hawkins,  3 
Gray,  463;  Pro/V^  v.  i?^,-s,  IS  N.T.9,  72  Am.  Dec.  4S4;  <7o»i. 
v.  Dougherty,  1  Browne,  App.  20;  People  v.  Garbutt,  17  Mich. 
9,  97  Am.  Dec.  162;  Com.  v.  J  [art.  2  Brewst.  516;  Golden  v. 
aStofc,  25  Ga.  527;  1  Russell,  Crimes,  12;  2  Bl.  Com.  25;  Coke, 
Inst.  274a. 

The  foregoing  adjudications  sufficiently  indicate  the  extended 
prevalence  of  the  rule,  any  serious  modification  of  this  view  would 
be  dangerous  to  and  subversive  of  public  welfare.  But  in  many 
cases  evidence  of  intoxication  is  admissible  with  a  view  to  the 
question  whether  a  crime  has  been  committed;  or  where  a  crime, 
consisting  of  degrees,  has  been  committed,  such  evidence  may  be 
important  in  determining  the  degree.  Thus  an  intoxicated  person 
may  have  a  counterfeit  bank  bill  in  his  possession  for  a  lawful 
purpose,  and,  intending  to  pay  a  genuine  bill  to  another  person, 
may,  by  reason  of  such  intoxication,  hand  him  the  counterfeit  bill. 
As  intent,  in  such  case,  is  of  the  essence  of  the  offense,  it  is  possible 
that  in  proving  intoxication  you  go  far  to  prove  that  no  crime 
was  committed.  Pigman  v.  State,  14  Ohio,  555,  45  Am.  Dec. 
55S;   Clint   v.  State,  43  Ohio  St.  332. 

A  man  who  voluntarily  puts  himself  in  a  condition  to  have  no 
control  of  his  action.- must  be  held   to   intend    the  consequei 
The  safety  of  the  community  requires  this  rule.     Intoxication   is 
so  easily  counterfeited,  and  when  real  is  so  often   resorted   to  as  a 
means  of  nerving  a  person  up  to  the  commission  of  some  desperate 


022  LAW    OF   EVIDENCE    IN    CKIMINAL    CASES. 

act,  and  is  withal  so  inexcusable  in  itself,  that  law  has  never 
recognized  it  as  an  excuse  for  crime.  Hopt  v.  Utah,  104  U.  S. 
631,  20  L.  ed.  873. 

This  exact  question  was  before  the  New  York  court  of  appeals 
in  the  case  of  People  v.  Rogers,  18  N.  Y.  18,  72  Am.  Dec.  484. 
In  delivering  the  judgment  of  the  court  in  that  case  Chief  Justice 
I  K'liio,  says:  "  When  a  principle  in  law  is  found  to  be  well  estab- 
lished by  a  series  of  authentic  precedents,  and  especially  where 
there  is  no  conflict  of  authority,  it  is  unnecessary  for  the  judges 
to  vindicate  its  wisdom  or  policy.  It  will,  moreover,  occur  to 
every  mind  that  such  a  principle  is  absolutely  essential  to  the  pro- 
tection of  life  and  property.  In  the  forum  of  conscience  there  is 
no  doubt  considerable  difference  between  a  murder  deliberately 
planned  and  executed  by  a  person  of  unclouded  intellect  and  the 
reckless  taking  of  life  by  one  infuriated  by  intoxication,  but  human 
laws  are  based  upon  considerations  of  policy,  and  look  rather  to 
the  maintenance  of  personal  security  and  social  order,  than  to  an 
accurate  discrimination  as  to  the  moral  qualities  of  individual 
conduct.  But  there  is,  in  truth,  no  injustice  in  holding  a  person 
responsible  for  his  acts  committed  in  a  state  of  voluntary  intoxi- 
cation. It  is  a  duty  which  every  one  owes  to  his  fellow  men  and 
to  society,  to  say  nothing  of  more  solemn  obligations,  to  preserve, 
so  far  as  it  lies  in  his  own  power,  the  inestimable  gift  of  reason. 
If  it  is  perverted  or  destroyed  by  fixed  disease,  though  brought  on 
by  his  own  vice,  the  law  holds  him  not  accountable.  But  if  by  a 
voluntary  act  he  temporarily  casts  off  the  restraints  of  reason  and 
conscience,  no  wrong  is  done  him  if  he  is  considered  censurable 
fur  any  injury  which  in  that  state  he  may  do  to  others  or  to 
society." 

The  same  doctrine  wTas  long  since  enunciated  by  that  eminent 
judge,  Lord  Mansfield,  who  said,  in  the  celebrated  case  of  The 
Chambt  rlain  of  London  v.  Evans,  in  the  House  of  Lords,  Febru- 
ary 4,  1767,  that  a  "  man  shall  not  lie  allowed  to  plead  that  he  was 
drunk  in  bar  of  criminal  prosecution,  though,  perhaps,  he  was  at 
the  rime  as  incapable  of  the  exercise  of  reason  as  if  he  had  been 
insane,  because  his  drunkenness  was  itself  a  crime,  he  shall  not  be 
allowed  to  excuse  one  crime  by  another."  It  is  a  settled  maxim 
of  the  law  "  that  a  man  shall  not  disable  himself." 

Mr.  May,  in  his  Criminal  Law,  §  22,  says:  "When,  however,  in 
the  course  of  trial,  a  question  arises  as  to  the  particular  state  of 


DRUNKENNESS,  INFANCY  AND  COVERTURE  AS  EXCUSE.  623 

the  mind  of  the  accused  at  the  time  when  he  committed  a  crime — 
as,  for  instance,  whether  he  entertained  a  specific  intent,  or  had 
express  malice,  or  was  acting  with  deliberation — the  fact  of  intox- 
ication becomes  an  admissible  element  to  aid  in  its  determination; 
not  as  an  excuse  for  the  crime,  but  as  a  means  of  determining  its 
degree.  If  a  man  be  so  drunk  as  not  to  know  what  he  is  doing, 
he  is  incapable  of  forming  any  specific  intent."  Lancaster  v. 
State,  2  Lea,  575. 

Continued  and  excessive  drunkenness  may  render  the  accused 
incapable  of  forming  or  entertaining  the  specific  intent  which  is  a 
material  ingredient  of  the  statutory  offense  of  an  assault  with 
intent  to  murder.     Ross  v.  State,  62  Ala.  224. 

§  388.  Presumption  of  Sanity  Obtains. — The  accused  must 
be  presumed  to  be  sane  till  his  insanity  is  proved.  It  is  not  every 
kind  or  degree  of  insanity  which  exempts  from  punishment.  If 
the  accused  understood  the  nature  of  the  act;  if  he  knew  it  was 
wrong  and  deserved  punishment,  he  is  responsible.  Experts  are 
not  allowed  to  give  their  opinions  on  the  case,  where  its  facts  are 
controverted;  but  counsel  may  put  to  them  a  state  of  facts,  and 
ask  their  opinions  thereon.  If  a  person  suffering  under  delirium 
tremens,  is  so  far  insane  as  not  to  know  the  nature  of  his  act,  etc., 
he  is  not  punishable.  If  a  person,  while  sane  and  responsible, 
makes  himself  intoxicated,  and,  while  intoxicated,  commits  mur- 
der by  reason  of  insanity,  which  was  one  of  the  consequences  of 
intoxication,  and  one  of  the  attendants  on  that  state,  he  is  respon- 
sible.     United  States  v.  McGlue,  1  Curt.  C.  C.  1. 

It  would  be  easy  to  multiply  citations  of  modern  cases  upon  this 
doctrine;  but  it  is  unnecessary,  as  they  all  agree  upon  the  main 
proposition,  namely,  that  mental  alienation,  produced  by  drinking 
intoxicating  liquors,  furnishes  no  immunity  for  crime. 

§  389.  New  York  Code  Provisions. — "No  act  committed  by  a 
person  while  in  a  state  of  voluntary  intoxication,  shall  be  deemed 
less  criminal  by  reason  of  his  having  been  in  such  condition. 
But  whenever  the  actual  existence  of  any  particular  purpose, 
motive  or  intent  is  a  necessary  element  to  constitute  a  particular 
species  or  degree  of  crime,  the  jury  may  take  into  consideration 
the  fact  that  the  accused  was  intoxicated  at  the  time,  in  determin- 
ing the  purpose,  motive  or  intent  with  which  he  committed  the 
act."     K  Y.  Penal  Code,  §  22. 


624  LAW    OF    EVIDENCE    IN    CRIMINAL    CASES. 

If  voluntary  intoxication  may  be  considered  upon  the  question 
of  intent,  a  fortiori  upon  that  of  deliberation. 

§  390.  Statement  of  the  General  Rule.— At  common  law, 
indeed,  as  a  general  rule,  voluntary  intoxication  affords  no  excuse, 
justification  or  extenuation  of  a  crime  committed  under  its  influ- 
ence. United  Stat,*  v.  Drew,  5  Mason,  28;  United  States  v. Mc- 
GVue,  1  Curt.  C.  C.  1;  Com.  v.  Hawtems,  3  Gray,  463;  People  v. 
Rogers,  IS  K".  Y.  9,  72  Am.  Dec.  484.  But  when  a  statute 
establishing  different  degrees  of  murder  requires  deliberate  pre- 
meditation in  order  to  constitute  murder  in  the  first  degree,  the 
question,  whether  the  accused  is  in  such  a  condition  of  mind,  by 
reason  of  drunkenness  or  otherwise,  as  to  be  capable  of  deliberate 
premeditation,  uecessarily  becomes  a  material  subject  of  consider- 
ation by  the  jury.  The  law  has  been  repeatedly  so  ruled  in  the 
supreme  judicial  court  of  Massachusetts  in  cases  tried  before  a 
full  court.  Com.  v.  Dorset/,  103  Mass.  412,  and  in  well  consid- 
ered cases  in  courts  of  other  states.  PirtU  v.  State,  9  Humph. 
663;  Haile  v.  State,  11  Humph.  154;  Kelly  v.  Com.  1  Grant  Cas. 
184;  Keenan  v.  Coin.  44  Pa.  55,  si  Am.  Dec.  414;  Jones  v.  Com. 
75  Pa,  403;  People  v.  Belencia,  '11  Cal.  544;  People  v.  Williams, 
43  Cal.  344:  Statt  v.  Johnson,^)  Conn.  136, 41  Conn.  584;  Pigman 
v.  State,  14  Ohio,  ->->'k  45  Am.  Dec.  558.  And  the  same  rule  is 
expressly  enacted  in  the  Penal  Code  of  Utah,  §  20:  "No  act 
committed  by  a  person  while  in  a  state  of  voluntary  intoxication 
is  less  criminal  by  reason  of  his  having  been  in  such  condition. 
But  whenever  the  actual  existence  of  any  particular  purpose, 
motive  or  intent  is  a  necessary  element  to  constitute  any  particu- 
lar species  or  degree  of  crime,  and  the  jury  may  take  into  consid- 
eration the  fact  that  the  actfnsed  was  intoxicated  at  the  time,  in 
determining  the  purpose,  motive  or  intent  with  which  he  commit- 
ted the  act."  Compiled  Laws  of  Utah,  of  1876,  pp.  568,  569;  Hopt 
tah,  104  l'.  S.  631,  26  L.  ed.  873. 

|  391.  Instances  of  its  Availability. — Drunkenness,  although 
carried  to  the  extent  that  it  overcomes  the  will,  and  incapacities 
from  controlling  the  action  of  the  mind,  is  no  excuse  for  a  crime; 
and  voluntary  intoxication,  although  amounting  to  a  frenzy,  does 
not  exempt  one  who  commits  a  homicide  without  provocation, 
from  the  same  construction  of  his  conduct,  and  the  same  legal 
inferences  upon  the  question  of  intent,  as  affecting  the  grade  of 


DRUNKENNESS,  INFANCY  AND  COVERTURE  AS  EXCUSE.  625 

his  crime,  which  are  applicable  to  a  person  entirely  sober.    Flani- 
gan  v.  People,  86  JS\  Y.  554,  40  Am.  Rep.  556. 

Intoxication,  though  not  an  excuse  for  crime,  ma}'  reduce  the 
crime  of  murder  to  the  second  degree.  Jones  v.  Com.  75  Pa. 
403;  Com.  v.  Crozier,  1  Brewst.  349;  Com.  v.  Hart,  2  Brewst. 
546;  Com.  v.  Perrier,  3  Phila.  229;  Com.  v.  Dunlop,  Lewis, 
Crim.  L.  394;  Corn.  v.  Haggerty,  Lewis,  Crim.  L.  402;  Com.  v. 
Baker,  11  Phila.  631;  Com.  v.  Piatt,  11  Phila.  415. 

Many  courts  have  allowed  drunkenness  to  be  shown  in  mitiga- 
tion of  the  higher  offense.  In  the  case  of  State  v.  Johnson,  40 
Conn.  136,  the  court  held  that  intoxication,  as  tending  to  show 
that  the  prisoner  was  incapable  of  deliberation,  might  be  given  in 
evidence.  Chief  Justice  Seymour  dissented,  and  Foster,  -/.,  who 
tried  the  case  below,  did  not  sit,  so  that  the  four  judges  con- 
stituting the  court,  were  in  fact,  equally  divided.  The  same  case 
came  before  the  court  again  in  41  Conn.  5S4,  and  the  opinion  was 
delivered  by  the  same  judge.  The  court  were  hard  pressed  with 
the  former  opinion  in  the  same  case,  and  that  it  had  taken  a 
departure  from  the  common  law.  But  the  court  repelled  the 
intimation,  and  declared  that  "we  have  enunciated  no  such  doc- 
trine," but  "held  on  a  trial  for  murder  in  first  degree  which  under 
our  statute  requires  actual  express  malice,  the  jury  might  and 
should  take  into  consideration  the  fact  of  intoxication,  as  tending 
to  show  that  such  malice  did  not  exist."  And,  in  the  same  opin- 
ion, the  judge  says:  "Malice  may  be  implied  from  the  circum- 
stances of  the  homicide.  If  a  drunken  man  take  the  life  of 
another,  unaccompanied  with  circumstances  of  provocation  or 
justification,  the  jury  will  be  warranted  in  finding  the  existence 
•of  malice,  though  no  express  malice  is  proved.  Intoxication, 
which  is  itself  a  crime  against  society,  combines  with  the  act  of 
killing,  and  the  evil  intent  to  take  life  which  necessarily  accompa- 
nies it,  and  altogether  afford  sufficient  grounds  for  implying 
malice.  Intoxication,  therefore,  so  far  from  disproving  malice,  is 
itself  a  circumstance  from  which  malice  may  be  implied.  We 
wish,  therefore,  to  reiterate  the  doctrine  emphatically,  that  drunk- 
enness is  no  excuse  for  crime;  and  we  trust  it  will  be  a  long  time- 
before  the  contrary  doctrine,  which  will  be  so  convenient  to  crim 
inals  and  evil  disposed  persons,  who  receive  the  sanction  of  this 
40 


020  LAW    OF    EVIDENCE    IN    CK1MINAL    OASES. 

court."  This  reasoning  seems  to  us  both  illogical  and  incongru- 
ous. 

Intoxication  may  be  considered  in  connection  with  other  facts 
in  rebuttal  of  malice  {State  v.  Tatro,  50  Vt.  483;  Shannahan  v. 
Com.  8  Bush,  403,  373;  Golden  v.  State,  25  Ga.  527;  Dawson  v. 
State,  10  Ind.  428;  1I<  nry  v.  State,  33  Ga.  441);  or  to  test  capacity 
to  form  a  purpose  {Kenny  v.  People,  31  N.  Y.  330;  People  v. 
Odell,  1  Dak.  203);  or  to  decide  between  right  and  wrong,  to  show 
incapacity  to  deliberate  or  to  attack  or  defraud  {State  v.  Johnson,. 

40  Conn.  130;  Wens  v.  State,  1  Tex.  App.  30;  State  v.  Home,  9- 
Kan.  11!* i  or  as  to  whether  threats  were  its  result,  or  deliberate. 
Lam  rgan  v.  People,  50  Barb.  207;  People  v.  Eastwood,  14  N.  Y. 
502. 

It  is  available  to  disprove  a  specific  intent,  as  to  pass  counter- 
feit money  with  intent  to  cheat  {United  States  v.  Roudenbush, 
Baldw.  r>14;  Pigman  v.  State,  15  Ohio,  555,  45  Am.  Dee.  558; 
but  see,  Nichols  v.  State,  8  Ohio  St.  435;  State  v.  Avert/,  44  JN\ 
II.  392);  or  to  commit  suicide  {Lytle  v.  State,  31  Ohio  St.  190); 
or  perjury  {Real  v.  PeopU  ,  42  X.  Y.  270);  or,  in  assault,  an  intent 
to  murder  {Reg.  v.  Cruse,  8  Oar.  t%  P.  541;  State  v.  Garvey,  11 
Minn.  154;  Mooney  v.  State,  33  Ala.  419);  or  to  do  great  bodily 
harm.  State  v.  McCants,  1  Speer,  L.  384;  Gull  (her  v.  CW&.  2 
Duv.  103,  87  Am.  Dec.  493;  Roberts  v.  People,  19  Mich.  401; 
Y,\v.  v.  Moore,  3  Car.  &  K.  319. 

In  case  of  wanton  killing  without  provocation,  intoxication  is 
not.  available  to  disprove  the  criminal  intent.  (>' Herrmv.  State, 
14  Ind.  4iJi»;  Choice  v.  State,  31  Ga.  424;  Humphreys  v.  State,  45 
Ga.  190;  Zfttes  v.  State,  55  Ga.  30;  Rafferty  v.  People,  00  111.  US; 
7,',  v.  v.  Gamlen,l  Fost.  &  F.  90. 

Intoxication  furnishes  no  extenuation  where  a  man  forms  the 
purpose  when  sober  and  takes  liquor  to  prepare  himself  for  the 
act.     Peopli    v.  Fuller,  2  Park.  Crim.  Pep.  10;  State  v.  Johnson, 

41  Conn.  584;  State  v.  Cross,  27  Mo.  332;  State  v.  Harlow,  21 
Mo.  446;  Com-,  v.  Hawkins,  3  Gray,  463;  Com.  v.  Malone,  114 
Mass.  295;  United  States  v.  Cornell,  2  Mason.  '.H:  Frlery  v.  ,/teo- 
y.V, .  54  Barb.  319;  State  v.  JbAw,  30  N.  C.  330;  but  see,  State  v. 
Hundley,  46  Mo.  414:  Carry  v.  C<////.  2  Bush,  07;  Kriel  v.  Com. 
5  Bush,  362;  Shannahan  v.  O;//?.  S  Bush,  4(13. 

While  intoxication  j?^  #6  is  no  defense  to  the  fact  of  guilt,  yet. 
when  the  question  of   intent  or  premeditation  is  concerned,  evi- 


DRUNKENNESS,  INFANCY  AND  COVERTURE  AS  EXCUSE.  627 

dence  of  it  is  admissible  for  the  purpose  of  determining  the  pre- 
cise degree.  Great  caution  is  undoubtedly  necessary  in  the 
application  of  this  doctrine,  for,  as  lias  already  been  remarked, 
there  are  few  cases  of  premeditated  violent  homicide,  in  which 
the  defendant  dues  not  previously  nerve  himself  for  the  encounter 
by  liquor,  and  there  would  in  future  be  none  at  all,  if  the  fact  of 
being  in  liquor  at  the  time  is  enough  to  disprove  the  existence  of 
premeditation.  The  true  view,  therefore,  would  seem  to  be,  not 
that  the  fact  of  liquor  having  been  taken  is  of  any  value  at  all  on 
the  question  of  malice,  but  that  when  there  is  no  evidence  of 
premeditation  aliunde,  and  where  the  defendant  is  proved  at  the 
time  of  the  occurrence  to  be  in  a  state  of  mental  confusion  of 
which  drink  was  the  cause,  the  fact  of  such  mental  confusion  may 
be  received  to  show  either  that  there  was  no  specific  intent  to 
take  life,  or  that  there  was  no  positive  premeditation. 

To  disprove  malice,  drunkenness  is  certainly  irrelevant.  Thus, 
in  Massachusetts,  the  law  is  that  intoxication,  at  the  time  of  com- 
mitting a  homicide,  is  not  entitled  to  any  weight  in  determining 
whether  the  provocation  was  such  as  to  reduce  the  crime  from 
murder  to  manslaughter.      Com.  v.  Hawkins,  3  Gray,  463. 

§  392.  A  Distinction  Noted. — On  this  branch  of  evidence  Mr. 
Justice  Story  in  the  course  of  a  trial  before  him  said  :  "However 
criminal  in  a  moral  point  of  view,  such  an  indulgence  is,  and 
however  justly  a  party  may  be  responsible  for  his  acts  arising 
from  it,  to  Almighty  God,  human  tribunals  are  generally  restricted 
from  punishing  them,  since  they  are  not  the  acts  of  a  reasonable 
being.  Had  the  crime  been  committed  when  the  defendant  was 
in  a  fit  of  intoxication,  he  would  have  been  liable  to  be  convicted 
of  murder.  As  he  was  not  then  intoxicated,  but  merely  insane 
from  an  abstinence  from  liquor,  he  cannot  be  pronounced  guilty 
of  the  offense.  The  law  looks  to  the  immediate,  and  not  the  re- 
mote cause;  to  the  actual  state  of  the  party,  and  not  to  the  cause 
which  remotely,  produced  it.  Many  species  of  insanity  arise  re 
motely  from  what,  in  a  moral  view,  is  a  criminal  neglect  or  fault 
of  the  party;  as  from  religious  melancholy,  undue  exposure,  ex 
travagant  pride,  ambition,  etc.  Yet  such  insanity  has  always  been 
deemed  sufficient  excuse  for  any  crime  done  under  its  influence." 
United  States  v.  Dn  w,  5  Mason,  28. 

If  a  person  is  entirely  incapacitated,  by  delirium  tremens,  so  as 


628  LAW  OK    EVIDENCE    IN    CRIMINAL    CASKS. 

not  to  be  conscious  of  the  nature  or  moral  turpitude  of  an  act,  lie 
is  not  punishable  therefor,  even  though  such  delirium  tremens  is 
produced  by  the  voluntary  use  of  intoxicating  liquor.  United 
States  v.  Clarke,  2  Cranch,  C.  C.  158;  United  States  v.  McGlue, 
1  Curt.  C.  C.  1;  Bailey  v.  State,  26  Ind.  422;  O'Brien  v.  People, 
48  Barb.  274;  Real  v.  People,  55  Barb.  551,  42  K  Y.  270;  Zan- 
ergan  v.  People,  6  Park.  Crim.  Rep.  209,  50  Barb.  266;  Willis  v. 
Com.  22  Alb.  L.  J.  170;  Field,  Lawyers'  Briefs,  §  276. 

Both  legal  and  medical  writers  recognize  the  fact  that  a  contin- 
uous and  excessive  use  of  ardent  liquors  may  result  in  such  a  state 
of  insanity  as  to  relieve  from  criminal  responsibility.  It  is  very 
different  from  acts  produced  in  a  state  of  ordinary  intoxication, 
and  must  be  governed  by  wholly  different  rules  and  principles. 
The  trials  of  causes,  as  reported,  show  that  there  is  no  species  of 
insanity  in  which  the  mind  is  so  completely  filled  with  hallucina- 
tions as  that  produced  by  this  means.  The  result  of  an  examina- 
tion of  the  criminal  cases  where  this  defense  was  made,  as  wrell  as 
an  examination  of  the  medical  authorities  upon  the  subject,  show 
that  acts  of  violence  on  the  part  of  the  victim  of  this  unfortunate 
habit  of  alcoholism  are  often  committed  while  he  is  recovering 
from  his  debauch.  This  sort  of  testimony  is  for  the  consideration 
of  the  jury,  and  with  a  view  of  enabling  them  to  determine  the 
condition  of  the  mind  of  the  defendant  at  the  time  of  the  offense. 
Was  he,  at  such  time,  by  reason  of  his  previous  habits  of  intoxi- 
cation, rendered  incapable  of  forming  the  intention,  or  of  exercis- 
ing the  deliberation  and  premeditation,  which  are  essential  to  the 
existence  of  crime  \ 

Mental  incapacity  produced  by  voluntary  intoxication  existing 
only  temporarily,  but  at  the  time  of  the  commission  of  the  offense, 
js  no  excuse  for  crime,  nor  a  defense  for  a  prosecution  therefor. 
But  where  the  habit  of  intoxication,  though  voluntary,  has  been 
long  continued,  and  has  produced  disease  which  has  perverted  or 
destroyed  the  mental  faculties  of  the  accused,  so  that  he  was  in- 
capable  at  the  time  of  the  commission  of  the  alleged  crime,  on 
account  of  the  disease,  of  acting  from  motive,  or  distinguishing 
right  from  wrong, — in  short,  insane — he  will  not  be  held  account- 
able for  the  act  charged  as  a  crime  committed  while  in  such  con- 
dition.     Wagner  v.  State,  116  Ind.  181. 

§  393.  Non-age  as  an  Excuse  for  Crime. — Blackstone,  vol. 
4,  p.  23,  says  :    "  Under  seven  years  of  age,  indeed,  an  infant  can- 


DKU.NEE.NJSi  ESS,  LNIANCiT  AND  COVEKTUKE  AS  EXCUSE.  629 

not  be  guilty  of  felony;  for  then  a  felonious  discretion  is  almost 
an  impossibility  in  nature."  He  further  says  that  convictions 
have  been  had  of  infants  between  seven  and  fourteen.  "  But  in 
all  such  cases  the  evidence  of  that  malice  which  is  to  supply  age 
ought  to  be  strong  and  clear  beyond  all  doubt  and  contradiction." 

§  394.  The  Authorities  Examined.— The  authorities  which 
justify  these  preliminary  observations  will  now  be  reviewed.  In 
Broom's  Legal  Maxims,  pp.  232,  233,  it  is  said :  "  With  regard 
to  persons  of  immature  years,  the  rule  is,  that  no  infant  within 
the  age  of  seven  years  can  be  guilty  of  felony,  or  be  punished  for 
any  capital  offense;  for,  within  that  age.  an  infant  is  by  presump- 
tion of  law  doli  incapax,  and  cannot  be  endowed  with  any  dis- 
cretion, and  against  tln>  presumption  no  averment  shall  be 
received.  This  legal  incapacity,  however,  ceases  when  the  infant 
attains  the  age  of  fourteen  years,  after  which  period  his  acts 
become  subject  to  the  same  rule  of  construction  as  those  of  any 
other  person."  "  Between  the  ages  of  seven  and  fourteen  years 
an  infant  is  deemed  prima  facie  to  be  doli  incapax,'  but  in  this 
case  the  maxim  applies,  malitia  supplet  aslak  m — malice  supplies 
the  want  of  mature  years.  Accordingly,  at  the  age  above  men- 
tioned, the  ordinary  legal  presumption  may  be  rebutted  by  strong 
and  pregnant  evidence  of  mischievous  discretion;  for  the  capacity 
of  doing  ill  or  contracting  guilt  is  not  so  much  measured  by  years 
and  days  as  by  the  strength  of  the  delinquent's  understanding  and 
judgment.  In  all  such  cases,  the  evidence  of  malice  ought  to  be 
strong,  and  clear  beyond  all  doubt  and  contradiction."  See  also 
Archbold,  Criminal  Practice  &  Pleading,  pp.  11,  12,  where  the 
same  rule  is  announced. 

The  doctrine  recognized  in  the  elementary  books  upon  the 
question  involved  is,  ''that  infants  are  prima  facie  unacquainted 
with  guilt,  and  cannot  be  convicted,  unless  at  the  time  the  offense 
was  committed  they  had  a  guilty  knowledge  that  they  were  doing 
wrong." 

This  is  not  even  a  disputable  presumption  when  applied  to  an 
infant  under  seven  years  of  age;  but  between  seven  years  and 
fourteen  the  commonwealth  may  rebut  the  presumption  by  show- 
ing a  guilty  knowledge  on  the  part  of  the  accused. 

Russell  says  that  this  presumption  will  dimish  with  the  advance 
of  the  offender's  years,  and  will  depend  upon  the  particular  tacts 
and  circumstances  in  his  case.     1  Russell,  Crimes,  2. 


63^  LAW    OF    EVIDENCE    IH    CBIMINAL    CASES. 

This  same  author  suggests  that  "the  proper  course  is  to  leave 
the  case  to  the  jury  to  say  whether,  at  the  time  of  the  commission 
of  the  offense,  such  person  had  guilty  knowledge  that  he  was  do- 
ing wrong." 

The  test  given  by  Lord  Hale  is,  "  whether  the  accused  at  the 
time  was  capable  of  discerning  between  good  and  evil." 

Taylor,  in  his  work  on  Evidence,  questions  the  philosophy  of 
the  rule  laid  down  by  Hale,  for  the  reason  that  it  is  too  indefinite, 
and  may  be  applied  "either  to  legal  responsibility  or  to  moral 
guilt,"     1  Taylor,  Ev.  190. 

Few  infants  between  the  ages  of  seven  and  fourteen  years,  with 
ordinary  intellects,  are  so  ignorant  as  not  to  know  that  to  lie  or 
steal  is  wrong;  and,  therefore,  in  applying  the  rule  laid  down  by 
Lord  Hale  or  Russell,  the  infant  derives  no  benefit  from  the  legal 
presumption,  and,  instead  of  being  favored  by  the  law,  is  dealt 
with  in  the  same  manner  as  those  more  advanced  in  life. 

A  sense  of  moral  guilt  only  on  the  part  of  the  infant,  in  the  ab- 
sence of  a  knowledge  of  his  legal  responsibility  for  his  wrong- 
ful act,  will  not  authorize  a  conviction. 

When  the  prosecution  satisfies  the  jury  that  the  infant,  at  the 
time  he  committed  the  offense,  knew  it  was  wrong,  and  was 
aware  of  his  legal  responsibility  for  the  commission  of  the  crime, 
the  legal  presumption  of  innocence  on  account  of  his  tender  years 
no  longer  exists;  but  in  the  absence  of  such  proof,  the  legal  pre- 
sumption must  produce  an  acquittal.  Willet  v.  Com.  13  Bush, 
230. 

The  attitude  of  criminal  law  upon  this  subject  has  crystalized 
int«>  statutory  form  in  England,  and  from  it  Sir  James  Stephen 
has  redacted  the  following  as  expressive  of  its  intent:  "JlNoact 
done  by  any  person  under  seven  years  of  age  is  a  crime.  JSro  act 
done  by  any  person  over  seven  and  under  fourteen  years  of  age  is  a 
crime,  unless  it  be  shown  affirmatively  that  such  person  had 
sufficient  capacity  to  know  that  the  act  was  wrong."  Stephen, 
Dig.  art.  ^:».  21 I. 

For  authorities  sustaining  these  propositions,  the  distinguished 
author  cites  1  Hale,  P.  G.  27,  28;  1  Russell,  ('rimes,  7;  Rex  v. 
Ow(  n,  9  Car.  &  P.  230;  and  see  cases  collected,  1  Russell,  Crimes, 
7- 1 1 >. 

Sometimes  statutes  exist  with  reference  to  the  criminal  respon- 
sibility  of   minors.     For   example,  in   Texas,  it  is  provided  by 


DRUNKENNESS,  INFANCY  AND  COVERTURE  AS  EXCUSE.  631 

•statute,  that  no  person  shall  be  convicted  of  any  offense  com- 
mitted between  the  ages  of  nine  and  thirteen  years,  unless  it  shall 
appear  by  proof  that  he  had  discretion  sufficient  to  understand 
the  nature  and  illegality  of  the  act.  Paschal,  Dig.  art.  1638. 
Under  this  statute  it  is  held,  that  the  prosecution  must  prove  that 
a  defendant,  who  comes  within  the  statute  and  who  is  indicted 
for  murder,  knew  that  the  killing  of  a  human  being  was  a  great 
crime,  prohibited  by  law  under  severe  penalties.  Wusing  v. 
State,  33  Tex.  651.  The  same  rule  prevails  in  Alabama,  except 
that  the  age  of  the  infant  is  fixed  at  seven  and  fourteen.  Godfrey 
v.  State,  31  Ala.  323. 

With  regard  to  capital  crimes  the  law  is,  very  properly,  more 
minute  and  circumspect,  distinguishing  with  greater  nicety  the 
several  degrees  of  age  and  discretion,  than  in  cases  of  inferior 
grade;  but  if  it  appear  to  the  court  and  jury  that  the  offender 
was  doli  capax,  and  could  discern  between  good  and  evil  when  he 
committed  the  offense,  he  may  be  convicted  and  suffer  death. 
Tyler,  Infancy  &  Coverture,  139. 

Evidence  that  a  boy  is  under  the  age  of  fourteen  is  always 
competent  and  where  such  a  fact  is  made  to  appear  is  not  liable 
for  false  pretense.  Doran  v.  Smith,  19  Vt.  353.  The  question 
in  all  instances  of  his  capacity  to  know  good  from  evil,  is  a  ques- 
tion of  fact  to  be  determined  by  the  jury.  Peopl<  v.  Davis,  1 
Wheel.  Crim.  Cas.  230;  State  v.  Doherty,  2  Overt.  80;  People  v. 
Walker,  5  City  Hall  Kec.  137;  Stage  v.  !>■  ople,5  ( !ity  Hall  Rec. 
177;  fioj.  v.  Smith,  \  Cox,  C.  C.  260;  Rest  v.  Owen,  4  Car.  & 
P.  236. 

§  395.  Evidence  of  Marital  Coercion  as  an  Excuse. — It  is  a 
general  rule  of  law  that  persons  are  excused  from  those  acts 
which  are  not  done  of  their  own  free  will,  but  in  subjection  to 
the  powers  of  others.  And  as  to  persons  in  private  relations,  the 
principal  case  where  such  constraint  is  allowed  as  an  excuse  for 
criminal  misconduct,  is  that  of  a  wife,  based  upon  the  idea  of  her 
matrimonial  subjection  of  her  husband.  She  will  not  be  able  to 
suffer  for  an  offense  done  by  his  coercion,  or  in  his  company 
which  the  law  construes  as  coercive.  But  the  coercion  from  be- 
ing in  his  company  is  only  presumed;  and  if  it  appears  that  she 
was  not  urged  or  drawn  to  the  offense  by  him,  but  was  an  inciter 
of  it,  she  is  as  guilty  as  he  is.  If  she  steal  of  her  own  will,  or  by 
the  bare  command  of  her  husband  or  of  his  procurement,  she  is 


632  LAW    OF    EVIDENCE    IN    CRIMINAL    CASES. 

liable  as  well  as  he.  Reg.  v.  Buncombe,  1  Cox,  C.  C.  183;  Rex 
v.  Hughes,  2  Lew.  C.  C.  229,  cited  in  1  Russell,  Crimes,  *22. 
The  presence  of  the  husband  is  not  an  absolute  excuse,  it  gives 
only  a  prima  facie  presumption  of  coercion.        * 

The  prima  facie  presumption  that  the  wife  was  coerced  into 
committing  the  crime  could  be  rebutted  by  showing  that  she  was 
tlic  more  active  party.  Wagener  v.  Bill,  19  Barb.  321;  Rex  v. 
Hughes,  2  Lew.  C.  C.  229;  Reg.  v.  Cohen,  11  Cox,  C.  C.  99; 
Rex  v.  Morris,  Russ.  &  R.  270;  2  Barbour,  Crim.  L.  273;  1  Rus- 
sell, Crimes,  18,  21,  22. 

The  rule  is  everywhere  established,  that  the  commission  of  a 
criminal  act  raises  the  presumption  of  the  criminal  intent,  not- 
withstanding that  the  criminal  was  drunk  when  he  committed  it. 
No  other  rule  would  be  consistent  with  the  safety  of  society. 
But  where  the  existence  of  a  specific  intent  is  necessary  to  the 
criminal  act,  a  degree  of  drunkenness,  incompatible  with  the 
formation  of  that  intent,  negatives  the  act,  and  disproves  the 
crime.  Robinson,  Elementary  Law,  §  387,  citing  Broom,  Com. 
887,  888;  1  Hale,  P.  C.  32;  1  Russell,  Crimes,  7,  8;  1  Whart 
Crim.  L.  §£  32-14;  1  Bishop,  Crim.  L.  §§  397-416;  1  Bennett  & 
Heard,  Lead.  Crim.  Cas.  131-145. 


CHAPTER  XLVIII. 
EVIDENCE  OF  INSANITY. 

§  390.  Preliminary  observations. 

397.  Conflicting  Theories  Regarding  the  Subject. 

398.  Insanity   should  be  Established  Beyond  a    Reasonable 

JJoubt. 

399.  Statement  of  the  Doctrine  in  the  Boswell  Case. 

400.  Wide  Acceptance  of  the  Rule  hist  Stated. 

401.  Attitude  of  the  New  York  Court. 

402.  The  Celebrated  McNaghten  ''use  Considered. 

403.  The  Right  and  Wrong  Test   Considered  by  Mr.  Justice 

Ladd  of  the  New  Hampshire  Court. 

a.  Anal //sis  of  the  McNaghten  Case. 

b.  The  Result  Examined. 

c.  Worthlessness  of  the  Conclusion  Shown. 

d.  Practical  Repudiation  of  the  McNaghten  Case  by 

English  Jurists. 

404.  Early  Views  of  the  Massachusetts  Court. 

405.  New  York  and  Pennsylvania  Cases  Considered. 
40G.   Instances  where  all  Tests  hare  been  Discarded. 

407.  Delaware  Adopts  the  New  Hampshire  View. 

408.  " Right  and  Wrong"  Test  in  Formulas. 

409.  Liberal  Views  of  the  Alabama  Supreme  Court. 

a.  As  to  Medical  Experts. 

b.  But  Three  Questions  for  the  Jury. 

c.  Modification  of  the  Rule  in  BosivelVs  Case. 

d.  " Right  and  Wrong"  Test  Denounced. 

e.  Rule  of  the  French  and   German    Criminal  Codes 

Stated. 

f.  Dissenting  Views  of  Chief  Justice  Stone. 

g.  A  Cautionary  Paragraph. 

410.  The  Problem  Considered  by  Dr.  Ordronaux. 

411.  The  Guiteau  (fuse  Examined. 

a.  Abuse  of  Insanity  as  a  Defense. 

b.  Evidence  of  Insanity   in  Parents  and  Immediate 

Relatives. 

c.  Legitimate  Conclusions  from  the  Evidence, 

d.  The  McNaghten  Case  again  Reviewed. 

633 


634  LAW    OF    EVIDENCE    IN    CRIMINAL    CASES. 

e.  Monomaniac  and  Insane  Delusions  Considered. 

f.  Unsworn  Declarations  of  the  Accused. 

g.  The  Test  of  Criminal  Responsibility. 

h.   Theory  of  Irresistible  Impulse  Examined. 
i.  Review  of  the  State  Decisions. 
j.   Comments  of  Judge  Somerville. 

412.  Views  of  Mr.  Robert  Desty. 

413.  Views  of  the  Florida  Supreme  Court. 

414.  Moral  Insanity  as  an  Excuse  for  Crime. 

415.  Summary  of  the  Conclusions  Reached. 

416.  Review  of  the  Subject  by  the  Nevada  Supreme  Court. 

§396.  Preliminary  Observations.  —  The  frequency  with 
which  the  records  of  appeal  in  cases  of  homicide  are  incumbered 
with  allegations  of  error  regarding  the  instruction  of  the  trial 
court  as  to  what  constitutes  insanity,  renders  it  desirable  to  reach 
some  satisfactory  conclusion  on  this  subject.  Our  state  reports 
contain  many  formulas  which  are  designed  to  embody  the  existing 
law,  and  after  a  careful  review  of  the  various  judicial  dicta,  we 
are  inclined  to  recommend  the  instructions  contained  in  the  case 
of  Baldwin  v.  State,  12  Mo.  223.  The  judge's  charge  in  that 
particular  case  has  been  the  subject  of  much  comment  and  critical 
examination.  It  has  been  found  to  harmonize  with  both  public 
sentiment  and  statutory  law,  in  that  it  is  founded  upon  the  prin- 
ciple that  "in  medio  tutissim  us  est"  is  found  a  rule  lying  between 
two  extremes.  This  decision  is  authority  for  the  broad  proposi- 
tion that  the  defense  of  insanity  is  established  when  the  evidence 
offered  in  support  of  it  preponderates  in  favor  of  the  fact,  and 
reasonably  satisfies  the  jury  that  it  existed  at  the  time  the  crimi- 
nal act  charged  was  committed.  The  fact  that  insanity  is  so 
easily  simulated  demonstrates  the  wisdom  of  the  rule,  and  affords 
a  strong  reason  why  we  should  adhere  to  it. 

Dr.  Kay  has  well  observed :  "No  cases  subjected  to  legal  in- 
quiry are  more  calculated  to  puzzle  the  understandings  of  courts 
and  juries,  fco  mock  the  wisdom  of  the  learned,  and  baffle  the 
acuteness  of  the  shrewd,  than  those  connected  with  questions  of 
imbecility;"  and  he  might  have  safely  added,  insanity  generally. 
See  Ray,  Insanity  (3d  ed.)  §  104. 

397.  Conflicting  Theories  Regarding  the  Subject. — Two 

conflicting  theories  are  struggling  for  ascendency  in  the  criminal 
jurisprudence  of  the  country,  as  regards  the  degree  of  evidence 


EVIDENCE    OF    INSANITY.  635 

necessary  to  uphold  a  conviction  where  insanity  is  interposed  as  a 
•defense.  The  first  theory  is  of  English  origin  and  generally  ob- 
tains in  Alabama,  Arkansas,  California,  Iowa,  Louisiana,  Maine, 
Massachusetts,  Michigan,  Minnesota,  North  Carolina.  Ohio,  Penn- 
sylvania, Virginia,  West  Virginia  and  Texas,  with  some  slight 
modification.  The  rulings  in  these  states  substantially  hold,  that 
the  jury  must  regard  the  preponderance  of  evidence  as  controllino- 
their  decision  on  the  question  of  lunacy — that  is,  it  need  nut  be 
established  beyond  a  reasonable  doubt.  The  second  group  of 
•cases  have  been  decided  by  the  courts  of  New  Hampshire,  A^er- 
mont,  Michigan,  Illinois,  Indiana,  Kansas,  and  possibly  New- 
York,  and  go  far  to  sustain  the  contention,  that  under  the  de- 
fense of  insanity,  it  is  for  the  state  to  prove  that  the  accused  was 
■compos  mentis  beyond  a  reasonable  doubt. 

A  review  of  the  authorities  will  show  the  subtle  distinction  to 
which  this  subject  gives  rise  and  the  infinite  diversities  of  its  ap- 
plication. 

State  v.Jones,  50  X.  11.  369,  0  Am.  Rep.  242;  State  v.  Bart- 
lett,  43  K  H.  224,  80  Am.  Dec.  154:  Wright  v.  People,  4  Neb. 
408;  Cunningham  v.  State,  56  Miss.  272.  21  Am.  Rep.  360;  Peo- 
ple v.  Finley,  38  Mich.  482;  McAllister  v.  State,  17  Ala.  436,  52 
Am.  Dec.  ISO;  P^ple  v.  Garbutt,  17  Mich.  9,  97  Am.  Dec.  162; 
State  v.  Crawford,  11  Kan.  32:  Boswell  v.  State,  63  Ala.  307,  35 
Am.  Rep.  2":  Guetig  v.  State,  66  Ind.  94.  32  Am.  Rep.  99;  Mc- 
Kenzii  v.  State,  26  Ark.  334;  SU  vens  v.  State,  31  Ind.  4^5:  Peo- 
ple v.  Myers,  20  Cal.  518;  Polk  v.  State,  19  Ind.  170,  SI  Am. 
Dec  382;  People  v.  Coffman,  24  Cal.  233:  Chase  v.  People,  40  111. 
352;  People  v.  McDonnell,  47  Cal.  134;  Hopps  v.  People,  31  111. 
385,  83  Am.  Dec.  231;  People  v.  Wilson,  49  Cal.  14;  Fisher  v. 
People,  23  111.  293;  State  v.  Hoyt,  46  Conn.  330;  Boswell 
v.  Com.  20  Gratt.  860;  State  v.  Danby,  1  Houst.  ('rim.  Cas. 
175;  Clark  v.  State,  8  Tex.  App.  350;  Carter  v.  State,  L2 
Tex.  500,  62  Am.  Dec.  539;  State  v.  Fetter,  32  Iowa.  50; 
Dove  v.  State,  3  Heisk.  .".4^;  Kriel  v.  Com.  5  Rush,  362;  So. 
v.  Com.  >>  Pa.  301;  Graham  v.  Com.  16  I!.  Mon.  587;  Pannell 
v.  CW.  86  Ra.  268;  N////7//  v.  Cbm.  1  Duv.  224;  Meyers  v.  I 
83  Pa.  141;  >V</A;  v.  Lawrence,  ."-7  Me.  571:  Lynch  v.  Cow. 77  Pa. 
205;  6W.  v.  Rogers,  7  Met.  500,  -11  Am.  Dec.  458;  Orhoein  v. 
■Com.  76  Pa.  423,  18  Am.  Rep.  420;  Ciwra.  v.  /•;/.//,,  7  Gray,  583; 
Bergin  v.  State,  31   Ohio  St.  L15;  ''<,..  v.  //..///,,  11    Gray,  303; 


636  LAW    OF    EVIDENCE    IN    CRIMINAL   CASES. 

Loeffher  v.  State,  10  Ohio  St.  598;  Bonfanti  v.  State,  2  Minn. 
L23;  I  lark  v.  tftofe,  12  Ohio,  483,  40  Am.  Dec.  481;  State  v.  Gut, 
13  Minn.  341:  Morehead  v.  Brown,  51  N.  C.  367;  Baldwin  v. 
tftate,  12  Mo.  223;  $tofe  v.  Spencer,  21  N.  J.  L.  201;  State  y. 
Hiding,  21  Mo.  464;  £tofe  v.  Boice,  1  Houst.  Crim.  Cas.  355; 
XA/A  v.  Kli/nger,  43  Mo.  127;  -Sfofe  v.  Pratt,  1  Houst.  Crim.  Cas. 
269,  nSfozfe  v.  Smith,  53  Mo.  267;  «SW<s  v.  Draper,  1  Houst.  Crim. 
( las.  531;  Sifote  v.  Red  nu  u  r,  71  Mo.  173,  36  Am.  Rep.  462. 

For  authorities  holding  that  the  burden  is  with  the  accused  to 
show  his  insanity  by  a  preponderance  of  evidence,  where  this  plea 
is  interposed  in  traverse  of  an  indictment,  see  State  v.  Bartlett, 
43  K  H.  224;  People  v.  McCann,  16  N.  Y.  58,  69  Am.  Dec.  642; 
Reg.  v.  McNaghten,  10  Clark  &  F.  200;  People  v.  Schryver,  42 
N.  Y.  9,  1  Am.  Rep.  480;  Freeman  v.  People,  4  Denio,  28,  47 
Am.  Dec.  216;  Flanagan  v.  People,  52  N.  Y.  467,  11  Am.  Rep. 
731;  P(  qplt  v.  Pine,  2  Barb.  573;  Wagner  v.  People,  4  Abb.  App. 
JDec.  511;  People  v.  Robinson,  1  Park.  Crim.  Rep.  649;  Brother- 
ton  v.  People,  75  K  Y.  163;  £tate  v.  Brinyea,  5  Ala.  241;  in.s-A 
.,<-/',  A///'/  v.  iVtote,  45  Ga.  225;  /SW<?  v.  Marler,  2  Ala.  43,  36  Am. 
Dec.  398;  State  v.  McCoy,  34  Mo.  531;  United  States  v.  McGlue, 
1  Curt.  C.  C.  1;  (State  v.  Starling,  51  N.  C.  366;  $£«&  v.  Coleman,. 
27  La.  Ann.  691;  tftote  v.  Strauder,  11  W.  Va.  745;  State  v. 
Hundley,  46  Mo.  414;  Wright  v.  People,  Chase  v.  People,  Gra- 
ham  v.  Cr>///.  ,6'A/A?  v.  Klinger,  People  v.  Goffootn,  Fisher  v.  Peo- 
ple, Bonfanti  v.  State,  Leffner  v.  State,  People  v.  McDonnell^ 
StaU  v.  Fetter,  Boswell  v.  6V>/m.  and  Kriel  v.  Com.  supra. 

§  398.  Insanity  should  be  Established  beyond  a  Reason- 
able Doubt. — It  is  a  general  rule,  applicable  to  all  criminal  trials, 
that  to  warrant  a  conviction  the  evidence  should  satisfy  the  jury 
of  the  defendant's  guilt  beyond  a  reasonable  doubt;  and  it  has 
been  held  that  there  is  a  distinction  in  this  respect  between  civil 
and  criminal  cases.  This  rule  is  based  upon  the  presumption  of 
iniK  »cence,  which  always  exists  in  favor  of  every  individual  charged 
witli  the  commission  of  a  crime.  It  is  also  a  rule,  well  established 
by  authority,  that  where,  in  a  criminal  case,  insanity  is  set  up  as- 
a  defense,  the  burden  of  proving  the  defense  is  with  the  defend- 
ant, as  the  law  presumed  every  man  to  be  sane.  But  I  apprehend 
that  the  same  evidence  will  establish  the  defense  which  would 
prove  insanity  in  a  civil  case.  The  rule  requiring  the  evidence  to 
satisfy  the  jury  beyond  a  reasonable  doubt  is  one  in  favor  of  the 


EVIDENCE    OF    INSANITY.  637 

individual  on  trial  charged  with  the  crime,  and  is  applicable  only 
to  the  general  conclusion,  from  the  whole  evidence,  of  guilty  or 
not  guilty. 

In  Stats  v.  Spencer,  21  N.  J.  L.  196,  Chief  Justice  Hornblower 
laid  down  the  rule  that,  in  order  to  acquit  a  person  on  the  ground 
of  insanity,  the  proof  of  insanity,  at  the  time  of  committing  the 
act,  ought  to  be  as  clear  and  satisfactory  as  the  proof  of  commit- 
ting the  act  ought  to  be  in  order  to  find  a  sane  man  guilty. 

In  a  capital  case  where  insanity  is  interposed  as  a  defense  all 
rules  of  strict  construction  as  to  the  admission  of  evidence,  should 
be  relaxed. 

Even  in  case  where  the  court  is  convinced  that  the  defense  is 
spurious  and  improvised  as  a  last  resort  for  evading  the  conse- 
quences of  crime,  its  duty  is  to  hear  the  evidence  for  the  defense 
and  refrain  from  any  expression  of  personal  opinion  regarding  it. 
DeJarnette  v.  Com.  75  Va.  867;  Fain  v.  Com.  78  Ky.  183,  39 
Am.  Rep.  213;   Walsh  v.  People,  88  K  Y.  458. 

So  evidence  of  somnolentia  is  receivable.  Fain  v.  Com. 
supra. 

And  evidence  of  derangement  or  mental  disturbance,  in  the 
ancestors  or  blood  relations  of  the  accused  must  be  regarded  as 
always  competent. 

So  it  is  error  to  exclude  evidence  that  the  father  and  brothers 
of  the  prisoner  were  the  subjects  of  epilepsy  and  of  strange  con- 
duct, tending  to  show  that  they  were  tainted  with  insanity.  Bax- 
ter v.  Abbott,  7  Gray,  71;  Cole's  Trial,  7  Abb.  Pr.  N.  S.  330,  331; 
Com.  v.  Rogers,  7  Met.  500,  11  Am.  Dec.  458;  Coon  v.  Andrews, 
Mass.  1868,  cited  in  1  Whart.  &  S.  Medical  Jurisprudence,  §  375; 
1  Whart.  Am.  Crim.  L.  §  57. 

As  a  question  of  evidence,  the  burden  of  proof  of  sanity  is 
upon  the  government  in  all  cases.  The  act  must  not  only  be 
proved,  but  it  must  also  be  proved  that  it  is  the  voluntary  act  of 
an  intelligent  person.  Where  the  will  does  not  co-operate,  there 
is  no  intent.  But  as  sanity  is  the  normal  state  of  the  human 
mind,  the  law  presumes  everyone  sane  till  the  contrary  is  shown  ; 
and  this  presumption,  in  the  absence  of  evidence  to  the  contrary, 
is  sufficient  to  sustain  this  burden  of  proof.  If,  however,  the 
defendant  can,  by  the  introduction  of  evidence,  raise  a  reasonable 
doubt  upon  the  question  of  sanity,  he  is  to  he  acquitted.  This  is 
the  general  rule,  supported  by  the  great  weight  of  authority.      In 


038  LAW    OF    EVIDENCE    IN    CRIMINAL    CASES. 

some  of  the  states,  however,  it  is  held  that  if  the  prisoner  sets  up 
insanity  in  defense,  he  must  prove  it  by  a  preponderance  of  evi- 
dence,  or  it  is  of  no  avail.  It  is  not  enough  for  him  to  raise  a 
reasonable  doubt  on  the  point.  In  New  York,  the  authorities, 
seem  to  be  conflicting.  In  New  Jersey,  it  seems  to  be  the  law 
that  the  prisoner  must  prove  the  defense  of  insanity  beyond  a 
reasonable  doubt.  May,  Crim.  L.  §  20,  citing  Com.  v.  Pomeroy, 
117  Mass.  143:  People  v.  Garbutt,  17  Mich.  9,  97  Am.  Dec.  162; 
Stati  v.  Crawford,  11  Kan.  32,  32  Am.  L.  Reg.  N.  S.  21  and 
note;  Polk  v.  State,  19  Ind.  170,  SI  Am.  Dec.  382;  State  v.  Mar- 
ler,  2  Ala.  43,  36  Am.  Dec.  398;  Dove  v.  State,  3  Heisk.  348; 
Statt  v.  Jones,  50  K  H.  369,  9  Am.  Eep.  242;  Lynch  v.  Com.  77 
Pa.  205;  Kelly  v.  State,  3  Smedes  &  M.  518;  State  v.  Fetter,  32 
[owa,  lit;  People  v.  Best,  39  Cal.  690;  State  v.  Lynch  (Mo.)  4  L. 
&  Eq.  Rep.  653;  Boswell  v.  Com.  20  Gratt.  866;  Wagner  v.  Peo- 
ple, 4  Abb.  App.  Dec.  509;  People  v.  McCann,  16  K  Y.  58,  69 
Am.  Dec.  642:  Flanagan  v.  People,  52  N.  Y.  467,  11  Am.  Rep. 
731;  State  v.  Spencer,  21  JST.  J.  L.  202. 

§  399.  Statement  of  the  Doctrine  in  the  Boswell  Case.— 
The  questions  involved  in  this  chapter  were  fully  and  elaborately 
considered  in  Boswell  v.  State,  63  Ala.  307,  35  Am.  Rep.  20,  where 
the  authorities  on  the  subject  in  both  England  and  America  are 
lucidly  reviewed  in  the  opinion  of  Mr.  Justice  Stone  speaking  for 
a  majority  of  the  court.  The  doctrine  is  there  held,  that  insanity 
is  a  defense  which  must  be  established  to  the  satisfaction  of  the 
jury,  by  a  preponderance  of  the  evidence,  and  a  reasonable  doubt 
of  the  defendant's  sanity,  raised  by  all  the  evidence,  does  not 
authorize  an  acquittal.  A  subsequent  case  in  the  same  court 
(Ford  v.  State,  71  Ala.  385)  involving  substantially  the  same 
question,  elicited  the  same  expressions  from  Mr.  Justice  Somer- 
ville.  Traveling  with  the  utmost  caution  to  the  conclusion 
reached,  he  says:  "I  confess,  if  the  question  were  a  new  one, 
that,  apart  from  authority,  I  should  be  greatly  disposed  to  favor 
the  view  that,  although  the  law  presumed  sanity,  it  at  the  same 
time  presumed  innocence,  that  these  presumptions  are  each  dispu- 
table and  must  go  to  the  jury  to  be  considered  by  them  in  con- 
nection with  the  other  evidence,  and  that  if  the  jury,  upon  the 
facts  and  conflicting  presumptions  of  the  whole  case,  entertain  a 
reasonable  doubt  that  the  crime  charged  was  committed  by  the 
prisoner  while  in  a  sane  state  of  mind,  he  is  entitled  to  an  acquit- 


EVIDENCE    OF    INSANITY.  639 

tal.  This  is  the  modern  or  strictly  American  doctrine,  and  finds 
no  countenance,  so  far  as  I  can  discover,  among  the  best  law- 
writers  or  adjudged  cases  in  England.  It  seems  to  be  approved 
by  Mr.  Bishop  alone  of  the  American  text-writers,  and  finds  sup- 
port in  the  decisions  of  only  some  nine  or  ten  of  the  highest  courts 
of  the  several  states.  2  Bishop,  Crim.  Proc.  §  673;  (f  Conn  ell  v. 
People,  87  K  Y.  377,  41  Am.  Peep.  379;  Cunningham  v.  State, 
56  Miss.  269,  21  Am.  Rep.  360;  People  v.  Garbutt,  17  Mich.  9,  97 
Am.  Dec.  162;  State  v.  Crawford,  11  Kan.  32;  Guetig  v.  State, 
m  Ind.  94,  32  Am.  Pep.  99;  Chase  v.  People,  40  111.  352;  Wright 
v.  People,  4  Neb.  407;  State  v.  Jones,  50  K  H.  369,  9  Am.  Eep. 
242;  Dove  v.  State,  3  Heisk.  348;  State  v.  Patterson,  45  Vt.  308,. 
12  Am.  Rep.  200;  State  v.  Waterman,  1  Nev.  543. 

"The  doctrine  of  Boswell's  case,  which  repudiated  the  ordinary 
rule  of  reasonable  doubt  as  applicable  to  insanity  cases,  is,  how- 
ever, sustained  by  the  great  weight  of  authority.  It  seems  to  be 
approved  by  all  of  the  English  text-writers  and  adjudged  cases- 
coming  within  the  sanction  of  the  common  law  which,  for  many 
forcible  reasons  placed  insanity  upon  a  basis  somewhat  different 
from  other  defenses.  Reg.  v.  McNaghten,  10  Clark  &  F.  200; 
Peg.  v.  Iligginson,  1  Car.  &  K.  130;  Russell,  Crimes  (9th  ed.) 
525.  It  is  said,  in  Roscoe's  Criminal  Evidence,  that  'the  onus  of 
proving  the  defense  of  insanity,  or  in  the  case  of  lunacy,  of  show- 
ing that  the  offense  was  committed  when  the  prisoner  was  in  a 
state  of  lunacy,  lies  on  the  prisoner.'  Roscoe,  Crim.  Ev.  (7th  ed.) 
975.  In  Foster's  Crown  Law  it  is  said,  'all  the  circumstances  of 
the  accident,  necessity  or  infirmity,  are  to  be  satisfactorily  proved 
by  the  prisoner.'     Foster,  Crown  L.  225. 

"Among  the  American  authors,  Mi*.  Wharton  strongly  favors 
the  view  that  the  burden  of  the  proof  is  on  the  defendant  to 
prove  his  insanity  by  a  preponderance  of  the  evidence,  the  defense 
being  said  to  be  extrinsic  and  likened  to  an  application  in  'the 
nature  of  a  plea  to  the  jurisdiction,  or  a  motion  for  change  of 
venue.'  Whart,  Horn.  §  668;  Whart.  Crim.  Ev.  §  340;  Whart. 
Am.  Crim.  L.  (7th  ed.)  §  54.  Mr.  Greenleaf  says  that  the  defense 
'must  be  clearly  proved,' — and  again  that  it  'must  be  established 
by  evidence  satisfactory  to  the  jury.'  2  Greenl.  Ev.  §  373;  3 
Greenl.  Ev.  5.  The  adjudged  cases  in  this  country  present  a  vast 
weight  of  authority  favorable  to  the  doctrine  of  Boswell's  case, 
or  at  least  in  repudiation  of  the  rule  entitling  the  defendant  to  an 


640  LAW    OF    EVIDENCE    IN    CRIMINAL    CASES. 

acquittal  upon  the  existence  of  a  mere  reasonable  doubt  of  his 
sanity.  Many  of  these  cases  state  the  rule  more  strongly  against 
the  defendant,  and  some  go  to  the  length  that  the  defendant  must 
establish  his  insanity  to  the  satisfaction  of  the  jury  beyond  a  rea- 
sonable doubt.  These  views  prevail  in  several  of  the  states.  Mc- 
Allister v.  State,  17  Ala.  434,  52  Am.  Dec.  180;  Com.  v.  Heath, 
11  Gray,  303;  Sayres  v.  Com.  SS  Pa.  291;  State  v.  Fetter,  32  Iowa, 
49;  State  v.  Payne,  86  N.  C.  609;  Graham  v.  Com.  16  B.  Mon. 
587;  State  v.  Strauder,  11  W.  Va.  745,  27  Am.  Kep.  606;  State 
v.  Stark,  1  Strobh.  L.  479;  State  v.  Lawrence,  57  Me.  574;  State 
v.  Redemeier,  71  Mo.  173,  36  Am.  Rep.  462;  Bergin  v.  State,  31 
Ohio  St.  Ill;  Webb  v.  State,  9  Tex.  App.  490;  Boswell  v.  Com. 
20  Gratt.  860;  People  v.  Messersmith,  57  Cal.  575;  State  v.  Gut, 
13  Minn.  341;  McKensie  v.  State,  26  Ark.  334;  Carter  v.  State, 
56  Ga.  463;  State  v.  Spencer,  21  K  J.  L.  196;  State  v.  Banby,  1 
Houst.  Crim.  Rep.  166;  State  v.  Hoyt,  46  Conn.  330." 

§  400.  Wide  Acceptance  of  the  Rule  last  Stated. — The 
Pennsylvania  courts  have  accepted  the  doctrine  of  the  Boswell 
case,  as  is  abundantly  evidenced  by  Chief  Justice  Agnew  in  Ort- 
v<  In  v.  C<>in.  76  Pa.  414,  18  Am.  Rep.  420.  "Insanity  is  a 
defense.  It  presupposes  the  proof  of  the  facts  which  constitute 
a  legal  crime,  and  is  set  up  in  avoidance  of  punishment.  Keeping 
in  mind,  then,  that  an  act  of  willful  and  malicious  killing  has  been 
proved,  and  requires  a  verdict  of  murder,  the  prisoner,  as  a  defense, 
avers  that  he  was  of  unsound  mind  at  the  time  of  the  killing,  and 
incapable  of  controlling  his  will,  and,  therefore,  that  he  is  not 
legally  responsible  for  his  act.  .  .  .  Soundness  of  mind  is  the 
natural  and  normal  condition  of  men,  and  is  necessarily  presumed; 
not  only  because  the  fact  is  generally  so,  but  because  a  contrary 
presumption  would  be  fatal  to  the  interests  of  society.  JSTo  one 
can  justly  claim  irresponsibility  for  his  act  contrary  to  the  known 
nature  of  the  race  of  which  he  is  one.  He  must  be  treated  and 
be  adjudged  to  be  a  reasonable  being,  until  a  fact  so  abnormal  as 
a  want  of  reason  positively  appears.  It  is  therefore  not  unjust  to 
him  that  he  should  be  so  conclusively  presumed  to  be,  until  the 
contrary  is  made  to  appear  on  his  behalf.  To  be  made  so  to  appear 
to  the  tribunal  determining  the  fact,  the  evidence  of  it  must  be 
satisfactory  and  not  merely  doubtful,  as  nothing  less  than  satisfac- 
tion can  determine  a  reasonable  mind  to  believe  a  fact  contrary  to 
the  course  of  nature." 


EVIDENCE  OF  INSANITY.  641 

The  position  of  the  Pennsylvania  court  as  above  outlined  is  the 
accepted  rule  in  other  jurisdictions  as  is  shown  by  the  following 
cases:  McKenzie  v.  State,  26  Ark.  334;  State  v.  Smith,  53  Mo. 
267;  State  v.  Fetter,  32  Iowa,  50;  People  v.  McDonnell,  47  Cal. 
134;  State  v.  Starling,  51  K  C.  366;  State  v.  Lawrence,  57  Me. 
574;  Loeffner  v.  State,  10  Ohio  St.  599;  2  G-reenl.  Ev.  §  373; 
Whart  Horn.  §  665. 

§  401.  Attitude  of  the  New  York  Court.— "An  act  done  by  a 
person  who  is  an  idiot,  imbecile,  lunatic  or  insane,  is  not  a  crime. 
A  person  cannot  be  tried,  sentenced  to  any  punishment  or  pun- 
ished for  crime  when  he  is  in  a  state  of  idiocy,  imbecility,  lunacy 
or  insanity  so  as  to  be  incapable  of  understanding  the  proceeding 
or  making  his  defense.  A  person  is  not  excused  from  criminal 
liability  as  an  idiot,  imbecile,  lunatic,  or  insane  person,  except 
upon  proof  that,  at  the  time  of  committing  the  alleged  criminal 
act,  he  was  laboring  under  such  a  defect  of  reason  as  either, 

1.  Xot  to  know  the  nature  and  quality  of  the  act  he  was  doing;  or 

2.  Not  to  know  that  the  act  was  wrong."  JST.  Y.  Penal  Code, 
§§20,  21.^ 

Any  evidence  tending  to  show  the  presence  of  sufficient  mental 
capacity  to  distinguish  between  right  and  wrong  is  relevant  as  it 
is  well  settled  that  if  the  will  power  is  not  overthrown  by  disease, 
there  is  criminal  responsibility. 

Mere  weakness  of  intellect  will  not  shield  one  who  commits  a 
crime.  Goodiuin  v.  State,  96  Ind.  551;  Wartena  v.  State,  105 
Ind.  445;  Warner  v.  State,  114  Ind.  137. 

So,  it  is  not  error  for  the  court  to  inform  the  jury  that  the  evi- 
dence on  the  subject  of  mental  capacity  might  be  considered  by 
them  for  the  purpose  of  determining  the  mental  status  and 
capacity  of  the  defendant.     Conway  v.  State,  118  Ind.  483. 

Where  a  previous  condition  of  insanity  is  shown,  the  prosecu- 
tion may  show  that  the  crime  charged  in  the  indictment  was  com- 
mitted during  a  lucid  interval.  People  v.  Montgomery,  13  Abb. 
Pr.  X.  S.  207. 

The  New  York  rules  have  been  generally  adopted,  and  where 
the  evidence  shows  the  accused  to  be  capable  of  discriminating 
between  right  and  wrong,  responsibility  attaches.  The  theory 
that  he  is  without  power  to  control  his  actions  no  longer  prevails. 
Walker  v.  People,  88  N.  Y.  86;  Kearney  v.  People,  II  Colo. 
258;  People  v.  Coleman,  1  N.  Y.  Crim.  Rep.  1;  United  States  v. 
41 


642  LAW    OF    EVIDENCE    IN    CRIMINAL    CASES. 

Faulkner,  35  Fed.  Rep.  730;  Casey  v.  People,  31  Hun,  158;. 
State  v.  Potts,  100  K  C.  457;  People  v.  Walworth,  4  N.  Y. 
Crim.  Rep.  355;  State  v.  Howry,  37  Kan.  369;  People  v.  Camel, 
2  Edm.  Sel.  Cas.  200;  Cunningham  v.  £tote,  56  Miss.  369,  21 
Am.  Rep.  360;  Willi**.  People,  32  K  Y.  715;  £tote  v.  Bundy, 
24  S.  C.  439,  58  Am.  Rep.  263;  Flanagan  v.  People,  52  N.  Y. 
467,  11  Am.  Rep.  731;  United  States  v.  Young,  25  Fed.  Rep. 
710,7  Crim.  L.  Mag.  732;  Wagner  v.  People,  2  Keyes,  684;  ^afe 
v.  L<  wis,  (Nev.)  12  Crim.  L.  Mag.  72;  People  v.  TH///.-,  50  How. 
Pr.  204;  P<?0pfe  v.  AW/,,  62  Cal.  120,  45  Am.  Rep.  651;  People 
v.  Kleim,  1  Edm.  Sel.  Cas.  13;  State  v.  Murray,  11  Or.  413: 
People  v.  Montgomery,  13  Abb.  Pr.  N.  S.  207;  People  v.  Sprague, 
2  Park.  Crim.  Rep.  43;  P<?o/>Ze  v.  J^b<?«,  23  Hun,  60. 

If  an  article  on  "Insanity  and  Criminal  Responsibility"  (12 
Crim.  L.  Mag.  1)  the  writer  says:  "Common  sense,  reason  and 
the  weight  of  legal  authority  sustain  the  doctrine  that  if  a  person 
commits  a  crime,  and  at  the  time  knows  he  is  doing  wrong,  he 
should  be  held  criminally  responsible  for  his  act.  This  is  the 
only  doctrine  that  will  protect  our  social  relations,  uphold  morality 
and  religion.  Speculative  philosophy  and  phrenological  inter- 
pretation of  the  state  of  the  mind  is  no  test  as  to  one's  insanity 
and  are  incompatible  with  the  principles  of  rational  psychology." 

Evidence  that  the  accused  believes  himself  to  be  under  a 
demonic  influence — possessed  of  a  devil,  is  unavailing  as  a  defense 
to  crime,  provided  always  that  the  power  of  judging  between 
right  and  wrong  exists.     People  v.  Waltz,  50  How.  Pr.  204. 

So,  delirium  tremens  where  it  is  shown  to  have  utterly  clouded 
the  intellectual  perceptions  of  the  accused  to  the  extent  of  de- 
priving him  of  all  knowledge  of  right  and  wrong  is  a  shield  from 
the  criminal  responsibility.  People  v.  Carpenter,  102  ~N.  Y.  250; 
O'Brien  v.  People,  4s  Barb.  274;  O'Connell  v.  People,  87  N.  Y. 
377,  41  Am.  Rep.  379;  Peg.  v.  Davis,  14  Cox,  C.  C.  563;  Erwin 
v.  State,  10  Tex.  App.  700;  United  States  v.  Guiteau  (D.  C.)  3 
Crim.  L.  Mag.  35S. 

The  doctrine  that  a  criminal  act  may  be  excused  upon  the  evi- 
dence of  an  irresistible  impulse  to  commit  it,  when  the  offender 
has  the  ability  to  discover  his  legal  and  moral  duty  in  respect  to 
it,  has  no  place  in  the  law.     People  v.  Carpenter,  supra. 

§402.  The  Celebrated  McNaghten  Case  Considered. — The 
"right  and  wrong  test,"  or  the  capacity  of  the  prisoner  to  dis- 


EVIDENCE    OF    INSANITY.  643 

tinguish  between  right  and  wrong,  received  its  first  judicial  sanc- 
tion in  1843,  in  what  is  known  as  the  McNaghten  Case,  reported 
in  10  Clark  &  F.  200.  Some  of  the  American  courts  have 
adopted  the  principle  in  its  entirety.  But  vigorous  dissent  appears- 
in  the  courts  of  Illinois  and  Indiana,  where  the  principle  is  dis- 
tinctly repudiated;  and  New  Hampshire  might  provisionally  be 
included  as  hostile  to  the  doctrine  as  originally  promulgated. 
Mr.  Boswell  in  his  well  known  work  on  Insanity,  §  437,  in  criti- 
cising the  McNaghten  ( 'as< .  says  the  language  of  the  rule  is  open 
to  misconstruction.  The  true  inquiry  is,  and  the  jury  must  deter- 
mine from  the  evidence — had  he  sufficient  mental  power  to  choose 
the  right  and  reject  the  wrong. 

But  whatever  consideration  might  otherwise  have  been  due,  in 
view  of  its  highly  reputable  parentage,  to  the  McNaghten  Case, 
and  to  the  reasons  and  decisions  on  which  it  rested  many  reput- 
able American  authorities  are  receding  from  the  position  con- 
tended for  in  that  case  and  are  adopting  views  more  in  harmony 
with  the  advanced  scientific  investigation  of  the  day.  Indeed  it 
may  be  well  said  that  the  criticisms  which  have  been  already 
made  upon  it,  have  greatly  impaired  its  standing  as  an  authority 
and  threaten  to  divest  it  of  any  claim  to  attention  whatever. 
This  we  shall  endeavor  to  make  more  fully  apparent  as  we  pro- 
ceed. 

Much  confusion  can  be  avoided  in  the  discussion  of  this  subject 
by  separating  the  duty  of  the  jury  from  that  of  the  court  in  the 
trial  of  a  case  of  this  character.  The  province  of  the  jury  is  To 
determine  facts,  that  of  the  court  to  state  the  law.  The  rule  in 
McNaghten 's  Case  arrogates  to  the  court,  in  legal  effect,  the  right 
to  assert  as  matter  of  law  the  following  propositions :  (1)  That  there 
is  but  a  single  test  to  the  existence  of  that  degree  of  insanity 
such  as  confers  irresponsibility  for  crime;  (2)  that  there  does  not 
exist  any  case  of  such  insanity  in  which  that  single  test— the 
capacity  to  distinguish  right  from  wrong — does  not  appear;  (3) 
that  all  other  evidence  of  alleged  insanity,  supposed  by  physicians 
and  experts  to  indicate  a  destruction  of  tin-  freedom  of  the  human 
will,  and  the  irresistible  duress  of  one's  actions,  do  not  destroy 
his  mental  capacity  to  entertain  a  criminal  intent. 

The  whole  difficulty,  as  justly  said  by  the  supreme  judicial 
court  of  New  Hampshire,  is  that  "courts  have  undertaken  to 
declare  that  to  be  law  which  is  matter  of   fact."     tk  if,"  observes 


614  LAW    OF    EVIDENCE    IN    CRIMINAL    CASES. 

the  court,  "  the  tests  of  insanity  are  matters  of  law,  the  practice 
of  allowing  experts  to  testify  what  they  are  should  be  discon- 
tinued; if  they  are  matters  of  fact,  the  judge  should  no  longer 
testify  without  being  sworn  as  a  witness  and  showing  himself  to 
be  qualified  to  testify  as  an  expert."  State  v.  Pike,  49  N.  H. 
399,  6  Am.  Rep.  533;  Parsons  v.  State,  81  Ala.  577,  60  Am. 
Rep.  193. 

The  dissent  of  the  Illinois  court  from  the  general  rule,  as  here 
enunciated,  will  be  found  recorded  in  the  opinion  of  Mr. 
Justice  Breese  in  Hqpps  v.  People,  31  111.  385,  83  Am.  Dec. 
231,  and  the  jurists  of  that  state  have  steadily  refused  to  recede 
from  that  position.  The  language  of  the  court  is  as  follows: 
"  We  do  not  propose  to  go  into  an  examination  of  the  various 
decisions,  English  and  American,  on  this  subject,  it  being  suf- 
ficient to  say  that  no  certain,  uniform  and  definite  rule  can  be 
gathered  from  them.  In  the  midst  of  this  uncertainty,  with  the 
best  reflection  and  examination  which  we  have  been  able  to  give 
to  this  very  important  and  most  interesting  question,  we  have 
come  to  the  conclusion  that  a  safe  and  reasonable  test  in  all  such 
cases  would  be  that  whenever  it  should  appear  from  the  evidence 
that  at  the  time  of  doing  the  act  charged  the  prisoner  was  not  of 
sound  mind,  but  affected  with  insanity,  and  such  affection  was 
the  efficient  cause  of  the  act,  and  that  he  would  not  have  done 
the  act  but  for  that  affection,  he  ought  to  be  acquitted.  But  this 
unsoundness  of  mind  or  affection  of  insanity  must  be  of  such  a 
degree  as  to  create  an  uncontrollable  impulse  to  do  the  act 
charged,  by  overriding  the  reason  and  judgment  and  obliterating 
the  sense  of  right  and  wrong  as  to  the  particular  act  done,  and 
depriving  the  accused  of  the  power  of  choosing  between  them. 
If  it  be  shown  the  act  was  the  consequence  of  an  insane  delusion 
and  caused  by  it,  and  by  nothing  else,  justice  and  humanity  alike 
demand  an  acquittal." 

When  insanity  is  set  up  as  a  defense  by  a  person  accused  of 
crime,  then,  before  the  jury  can  acquit  the  accused  on  the  ground 
of  insanity,  it  must  appear,  from  the  evidence  in  the  case,  that  at 
the  time  of  the  commission  of  the  crime  the  accused  was  not  of 
sound  mind,  but  affected  with  insanity  to  such  a  degree  as  to 
create  an  uncontrollable  impulse  to  do  the  act  charged,  by  over- 
riding his  reason  and  judgment,  etc. 

This  language  is  in  entire  harmony  with  the  rule  announced  by 


EVIDENCE    OF    INSANITY.  645 

the  Illinois  court  in  Ilqpps  v.  People,  31  111.  385,  83  Am.  Dec.  231, 
and  Chase  v.  People,  40  111.  352.  We  regard  the  principles  adopted 
as  wise,  humane  and  reasonable,  protecting  alike,  as  best  can  be 
done  with  our  imperfect  knowledge  of  mental  diseases,  the  great 
interests  of  society  and  this  most  unfortunate  class  of  persons 
when  arraigned  for  the  commission  of  crime.  JDacey  v.  People, 
116  111.  555. 

§  403.  "  Right  and  Wrong "  Test  Considered  by  Mr.  Jus- 
tice Ladd  of  New  Hampshire. — From  a  distracting  mass  of 
adjudication  upon  this  subject  wherein  logic  and  metaphysics, 
hypercriticism  and  medical  whim-wham  unite  in  obscuring  the 
subject  it  is  positively  refreshing  to  find  the  New  Hampshire 
supreme  court  sustaining  its  conclusions  by  arguments  founded 
upon  a  critical  analysis  of  the  previous  decisions,  English  and 
American,  and  suggested  by  some  promptings  of  plain,  ordinary 
common  sense.  The  ultimate  question  to  be  determined  in  all 
cases  involving  this  inquiry,  is,  whether  at  the  time  of  the  com- 
mission of  the  act  the  evidence  shows  that  the  accused  had  the 
mental  capacity  to  entertain  a  criminal  intention — and  whether  in 
point  of  fact  he  did  entertain  such  intention.  In  solving  this 
problem  as  in  all  other  cases,  it  is  for  the  court  to  find  the  law  and 
for  the  jury  to  find  the  fact.  The  pivotal  question  is,  what  part 
of  this  difficult  inquiry  is  law,  and  what  part  is  fact  %  The  New 
Hampshire  court  strikes  at  the  very  pith  and  marrow  in  State  v. 
Jones,  50  N.  H.  369,  9  Am.  Rep.  242 ;  and  I  shall  indulge  in  a 
very  extended  extract  from  the  opinion  of  Mr.  Justice  Ladd,  which 
embodies  the  best  features  of  the  argument  usually  employed  to 
support  the  views  of  those  representing  the  minority  as  follows: 

"The  numerical  preponderance  of  authority  in  England,  as 
gathered  from  the  cases,  would  seem  to  be  decidedly  in  favor  of 
the  rule  that  knowledge  of  right  and  wrong,  without  reference  to 
the  particular  act,  is  the  test,  although  their  force  is  much  shaken, 
if  not  wholly  overthrown,  by  the  qualifications  which  judges  have 
seemed  to  feel  at  liberty  to  introduce,  to  meet  their  individual 
views,  or  the  exigencies  of  particular  case,-;  and  especially  by  the 
charge  of  Lord  Denman  in  Rc<j.  v.  Oxford,  9  Car.  &  P.  525. 

"The  memorable  effort  of  the  Eouse  of  Lords,  in  1843,  to  have 
the  confusion  and  conflict  of  opinion  which  had  arisen  on  this 
perplexing  question  all  cleared  away  by  one  distinct  and  full 
avowal  by  the  judges  of  what  the  law  was  and  .should  be  in  rela- 


64:6  LAW    OF    EVIDENCE    IN    CRIMINAL    CASES. 

tion  to  it,  is  too  conspicuous  in  the  history  of  the  subject  to  be 
passed  without  notice. 

a.  Analysis  of  the  McNaghten  Case. — "It  may  safely  be  said 
that  the  character  of  the  judges,  and  the  circumstances  under 
which  the  question  in  McNaghterCs  Case  (see  Reg.  v.  Iligginson, 
1  Car.  &  K.  130,  note)  were  propounded  to  them  by  the  House 
of  Lords,  make  it  morally  certain  that  if,  in  the  nature  of  things, 
clear,  categorical,  and  consistent  answers  were  possible,  such 
answers  would  have  been  given.  In  other  words,  that  if  a  safe 
practical,  legal  test  exists,  it  would  have  been  then  found  by  those 
very  learned  men,  and  declared  to  the  world.  Such  a  result 
Mould  have  brought  order  out  of  chaos,  and  saved  future  genera- 
tions of  lawyers  and  judges  a  vast  amount  of  trouble  in  trying, 
this  particular  felony.  But  an  examination  of  the  answers  given 
shows,  that  they  failed  utterly  to  do  any  such  thing,  and  it  is  not 
too  much  to  say  that,  if  they  did  not  make  the  path  to  be  pursued 
absolutely  more  uncertain  and  more  dark,  they  at  best  shed  but 
little  light  upon  its  windings,  and  furnish  no  plain  or  safe  clue  to 
the  labyrinth. 

"In  answer  to  the  first  question,  all  the  judges,  except  Maule, 
say  that  '  notwithstanding  the  party  accused  did  the  act  com- 
plained of  with  a  view,  under  the  influence  of  insane  delusion,  of 
redressing  or  avenging  some  supposed  grievance  or  injury,  or  of 
producing  some  public  benefit,  he  is  nevertheless  punishable, 
according  to  the  nature  of  the  crime  committed,  if  he  knew,  at 
the  time  of  committing  such  crime,  that  he  was  acting  contrary 
to  law,  by  which  is  meant  the  law  of  the  land.'  Here  is  an 
entirely  new  element — knowledge  that  he  was  acting  contrary  to 
the  law  of  the  land;  and  hereupon  the  inquiry  arises:  Is  a  man, 
acting  under  a  delusion  of  this  sort,  presumed  to  know  the  law  of 
the  land  \  The  answer  must  be,  Yes;  for  the  judges  say,  further 
on:  '  The  law  is  administered  upon  the  principle  that  every  one 
must  be  taken  conclusively  to  know  the  law  of  the  land,  without 
proof  that  he  does  know  it.' 

"  Let  this  pr<  >p<  >siti<  >n  be  examined  a  moment.  Knowledge  that 
the  act  was  contrary  to  the  law  of  the  land  is  here  given  as  a  test; 
that  is.  such  knowledge  is  assumed  to  be  the  measure  of  mental 
capacity  sufficient  to  entertain  a  criminal  intent.  By  what  possi- 
ble means,  it  may  be  asked,  can  that  test  or  measure  be  applied, 
without  first  finding  out  whether  the  prisoner,  in  fact,  knew  what 


EVIDENCE   OF   INSANITY.  647 

the  law  of  the  land  was  ?  How  could  a  jury  say  whether  a  man 
knew,  or  did  not  know,  that  an  act  was  contrary  to  the  law  of  the 
land,  without  first  ascertaining  whether  he  knew  what  the  law 
was?     .     .     . 

"In  answer  to  the  second  and  third  questions,  which  relate  to 
the  terms  in  which  the  matter  should  be  left  to  the  jury,  the 
judges  say  that  '  to  establish  a  defense  on  the  ground  of  insanity 
it  must  be  clearly  proved  that,  at  the  time  of  committing  the  act, 
the  party  accused  was  laboring  under  such  a  defect  of  reason  from 
disease  of  the  mind  as  not  to  know  the  nature  and  quality  of  the 
act  he  was  doing,  or  if  he  did  know  it,  he  did  not  know  he  was 
doing  what  was  wrong.' 

"Suppose,  now,  an  insane  man  does  an  act  which  he  knows  to  be 
contrary  to  law,  because  from  an  insane  delusion  (if  that  term 
amounts  to  anything  more  than  the  single  term  insanity)  he 
believes  it  to  be  right  notwithstanding  the  law,  that  the  law  is 
wrong,  or  that  the  peculiar  circumstances  of  the  case  make  it 
right  for  him  to  disregard  it  in  this  instance:  how  are  these  two 
rules  to  be  reconciled  ?  It  would  seem  to  be  plain  that  they  are 
in  hopeless  conflict,  and  cannot  both  stand.         .     .     . 

"  The  answer  to  the  fourth  question  introduces  a  doctrine  which 
seems  to  me  very  remarkable,  to  say  the  least.  The  question  was: 
'  If  a  person,  under  an  insane  delusion  as  to  existing  facts,  com- 
mits an  offense,  is  he  thereby  excused  % '  To  which  the  answer  was 
as  follows:  '  On  the  assumption  that  he  labors  under  partial 
delusion  only,  and  is  not  in  other  respects  insane,  he  must  be  con- 
sidered in  the  same  situation,  as  to  responsibility,  as  if  the  facts, 
with  respect  to  which  the  delusion  exists,  were  real.  For  example: 
if,  under  the  influence  of  delusion,  he  supposes  another  man  to 
be  in  the  act  of  attempting  to  take  away  his  life,  and  he  kills  that 
man,  as  he  supposes  in  self-defense,  he  would  be  exempt  from 
punishment.  If  his  delusion  was,  that  the  deceased  had  inflicted 
a  serious  injury  to  his  character  or  fortune,  and  he  killed  him  in 
revenge  for  such  supposed  injury,  he  would  be  liable  to  punish- 
ment.' 

b.  The  Result  Examined.— "The  doctrine  thus  promulgated 
as  law  has  found  its  way  into  the  text-books,  and  bus  doubtless 
been  largely  received  as  the  enunciation  of  a  sound  legal  principle 
since  that  day.  Yet  it  is  probable  that  no  ingenious  studenl  of 
the  law  ever  read  it  for  the  first  time  without  being  shocked  by 


648  LAW    OF    EVIDENCE    IN   CRIMINAL   CASES. 

its  exquisite  inhumanity.  It  practically  holds  a  man  confessed  to- 
be  insane,  accountable  for  the  exercise  of  the  same  reason,  judg- 
ment, and  controlling  mental  power,  that  is  required  of  a  man  in 
perfect  mental  health.  It  is,  in  effect,  saying  to  the  jury,  the 
prisoner  was  mad  when  he  committed  the  act,  but  he  did  not  use 
sufficient  reason  in  his  madness.  He  killed  a  man  because,  under 
an  insane  delusion,  he  falsely  believed  the  man  had  done  him  a 
great  wrong  which  was  giving  rein  to  a  motive  of  revenge,  and 
the  act  is  murder.  If  he  had  killed  a  man  only  because,  under  an 
insane  delusion,  he  falsely  believed  the  man  would  kill  him  if  he 
did  not  do  so,  that  would  have  been  giving  rein  to  an  instinct  of 
self-preservation,  and  would  not  be  crime.  It  is  true,  in  words, 
the  judges  attempt  to  guard  against  a  consequence  so  shocking,  as 
that  a  man  may  be  punished  for  an  act  which  is  purely  the  off- 
spring and  product  of  insanity,  by  introducing  the  qualifying 
phrase,  '  and  is  not  in  other  respects  insane.'  That  is,  if  insanity 
produces  the  false  belief,  which  is  the  prime  cause  of  the  act,  but 
goes  no  further,  then  the  accused  is  to  be  judged  according  to  the 
character  of  motives  which  are  presumed  to  spring  up  out  of  that 
part  of  the  mind  which  has  not  been  reached  or  affected  by  the 
delusion  or  disease.  This  is  very  refined.  It  may  be  that  mental 
disease  sometimes  takes  a  shape  to  meet  the  provisions  of  this  in- 
genious formula,  or,  if  no  such  case  has  never  yet  existed,  it  is 
doubtless  within  the  scope  of  omnipotent  power  hereafter  to  strike 
with  disease  some  human  mind  in  such  peculiar  manner  that  the 
conditions  will  be  fulfilled;  and  when  that  is  done,  when  it  is  cer- 
tainly known  that  such  a  case  has  arisen,  the  rule  may  be  applied 
without  punishing  a  man  for  disease.  That  is,  when  we  can  cer- 
tainly know  that,  although  the  false  belief  on  which  the  prisoner 
acted  was  the  product  of  mental  disease,  still,  that  the  mind  was 
in  no  other  way  impaired  or  affected,  and  that  the  motive  to  the 
act  did  certainly  take  its  rise  in  some  portion  of  the  mind  that 
was  vet  in  perfect  health,  the  rule  may  be  applied  without  any 
apparent  wrong,  but  it  is  a  rule  which  can  be  safely  applied  in 
practice,  that  we  are  seeking,  and  to  say  that  an  act  which  grows 
wholly  out  of  an  insane  belief  that  some  great  wrong  has  been 
inflicted,  is  at  the  same  time  produced  by  a  spirit  of  revenge 
springing  from  some  portion  or  corner  of  the  mind  that  has  not 
1mm  m  reached  by  the  disease,  is  laying  down  a  pathological  and 
psychological  fact  which  no  human  intelligence  can  ever  know  to 


EVIDENCE    OF    INSANITY.  649 

be  true,  and  which,  if  it  were  true,  would  not  be  law,  but  pure 
matter  of  fact.  !No  such  distinction  ever  can  or  will  be  drawn  in 
practice;  and  the  absurdity  as  well  as  inhumanity  of  the  rule 
seems  to  me  sufficiently  apparent  without  further  comment. 

c  Worthlessness  of  the  Conclusion  Shown. — '*To  form  a 
correct  estimate  of  the  value  of  these  answers,  we  have  only  to 
suppose  that,  at  the  end  of  a  criminal  trial  where  the  defense  is 
insanity,  they  be  read  to  the  jury  for  their  guidance  in  determin- 
ing the  question  with  which  they  are  charged.  Tried  by  this 
practical  test,  it  seems  to  me  they  utterly  fail:  and  the  reason  of 
the  failure,  as  I  think,  is,  that  it  was  an  attempt  to  lay  down  as 
law  that  which,  from  its  very  nature,  is  essentially  matter  of  fact. 
It  is  a  question  of  fact  whether  any  universal  test  exists,  and  it  is 
also  a  question  of  fact  what  the  test  is,  if  any  there  be. 

"  The  efforts  of  text-writers  to  extract  a  rule  from  the  cases  have 
not,  in  my  judgment,  been  more  successful.  See  1  Russell 
Crimes,  13;  Koscoe,  Crim.  Ev.  944." 

American  jurisprudence  has  of  necessity  been  powerfully  influ- 
enced by  English  models,  especially  in  the  formative  period  of  its 
existence,  where  a  compressed  abstract  of  some  English  case  was 
considered  absolutely  essential  to  impart  a  base  of  respectability 
and  legal  parentage  to  the  decision.  It  followed,  as  obviously  it 
must,  that  many  of  these  early  cases  are  beyond  the  countenance 
of  either  precedent  or  statute,  and  are  besieged  by  errors  ancient, 
inveterate,  traditional  and  accidental,  but  all  characteristic  of  their 
origin.  The  obstinacy  with  which  some  of  our  early  jurists  con- 
tended against  the  legal  innovation  upon  accredited  methods  in- 
duced them  to  carry  to  the  verge  of  eccentric  caprice  every  dictum 
that  had  an  alleged  or  reputed  claim  to  English  antecedents.  And 
while  it  is  true  that  this  Anglo-maniac  subserviency  lias  largely 
passed  away,  traces  of  its  early  ascendency  are  still  discernible  in 
the  lax  and  illogical  reasonings  that  led  to  the  indorsement  of  the 
McNaijhbn  Case. 

The  only  astonishment  is  that  the  reaction  should  have  been  so 
long  delayed.  There  was  nothing  whatever  in  the  early  training 
of  an  English  judge  bred  in  the  era  of  George  IV.,  that  would 
impart  the  least  respect  to  his  opinions  upon  a  profound  and  per- 
plexing problem  involving  erethistic  conditions  but  imperfectly 
understood  even  by  the  most  advanced  psychologists. 

It  was  never  a  proper  proposition  for  the  judges  and  no  other 


650  LAW    OF    EVIDENCE    IN    CRIMINAL    CASES. 

debating  club  at  Rugby  or  Eaton  would  ever  have  thought  of 
establishing  a  precedent  by  such  means. 

d.  Practical  Repudiation  of  the  McXaghten  Case  by  Eng- 
lish Jurists. — So  great,  it  may  be  added,  are  the  embarrass- 
ments growing  out  of  the  old  rule,  as  expounded  by  the  judges  in 
the  House  of  English  Lords,  that  in  March,  1874,  a  bill  was 
brought  before  the  House  of  Commons,  supposed  to  have  been 
draughted  by  the  learned  counsel  for  the  queen,  Sir  Fitzjames 
Stephen,  which  introduced  into  the  old  rule  the  new  element  of 
an  absence  of  the  power  of  self-control,  produced  by  diseases 
affecting  the  mind;  and  this  proposed  alteration  of  the  laws  was 
cordially  recommended  by  the  late  Chief  Justice  Cockburn,  his 
only  objection  being  that  the  principle  was  proposed  to  be  limited 
to  the  case  of  homicide.  1  Whart.  Am.  Crim.  L.  (9th  ed.)  p.  66, 
§  45,  note  1;  Browne,  Insanity,  §  10,  note  If  Parsons  v.  State,  81 
Ala.  577,  60  Am.  Rep.  193. 

If  we  leave  the  English  rule,  where  it  seems  to  be  left  by  these 
authorities,  I  think  an  examination  of  the  American  cases  will  not 
lead  to  any  more  satisfactory  result. 

§  404.  Early  Views  of  the  Massachusetts  Court. — In  Com. 
v.  Rogers,  7  Met.  500,  41  Am.  Dec.  458,  Shaw,  Ch,  J.,  instructed 
the  jury  that  "a  person  is  not  responsible  for  any  criminal  act  he 
may  commit,  if.  by  reason  of  mental  infirmity,  he  is  incapable  of 
distinguishing  between  right  and  wrong  in  regard  to  the  particu- 
lar act,  and  of  knowing  that  the  act  itself  will  subject  him  to  pun- 
ishment; or  has  no  will,  no  conscience,  or  controlling  mental 
power;  or  has  nut  sufficient  power  of  memory  to  recollect  the  rela- 
tions in  which  he  stands  to  others,  and  in  which  they  stand  to  him 
or  lias  his  reason,  conscience  and  judgment  so  overwhelmed  by 
the  violence  of  disease  as  to  act  from  an  uncontrollable  impulse." 

Here  seems  to  be  four  distinct  tests.  The  first  is  substantially 
that  given  by  Lord  Denman  in  Reg.  v.  Oxford,  9  Car.  &  P.  525, 
but  with  one  most  important  qualification  added,  namely,  knowl- 
that  the  act  will  subject  him  to  punishment.  But  how  can 
it  be  said  that  such  knowledge  constitutes  one  of  the  links  in  a 
chain  of  conclusive  evidence,  that  it  is  one  fact  in  a  chain  of  facts 
from  which  that  degree  of  insanity  which  will  excuse  a  person 
from  crime  is  to  be  conclusively  found? 

If  that  be  so,  then  certainly  a  legal  quality,  effect  or  significance 
i-  given  to  it  by  it-   position  in  the  chain,  which  no  one   would 


EVIDENCE    OF   INSANITY.  051 

ever  think  it  possessed  when  standing  alone.  The  desire  for  re- 
venge may  be  so  strong  as  to  outweigh  the  fear  of  a  punishment 
which  a  man  without  any  mental  disease  knows  must  follow  his 
act.  But  the  rule  is,  that,  in  addition  to  the  knowledge  of  right 
and  wrong  in  respect  to  the  particular  act,  the  accused  must  have 
been  capable  of  knowing  that  the  act  itself  would  subject  him  to 
punishment. 

It  is,  doubtless,  true  that  ability  to  know  that  a  certain  act  will 
be  followed  by  punishment,  furnishes  evidence  of  the  mental 
condition.  So  would  knowledge  of  any  other  fact  in  law  or  sci- 
ence. But  I  can  see  no  more  reason  for  holding  that  such  knowl- 
edge is  any  part  of  a  legal  test  of  capacity  to  commit  crime,  than 
for  holding  that  knowledge  of  the  cause  of  an  eclipse  is  entitled 
to  the  same  effect. 

The  second  rule  relates  to  a  case  where  there  can  be  no  doubt, 
where  the  will,  the  conscience  and  the  controlling  mental  power 
are  all  gone ;  and  the  fourth  is  substantially  the  same,  where  the 
reason,  conscience  and  judgment  are  so  overwhelmed  by  the  vio- 
lence of  disease,  that  he  acts  from  uncontrollable  impulse.  There 
can  be  no  very  appreciable  legal  distinction  between  a  person  who 
has  no  will,  no  conscience,  or  controlling  mental  power,  and  one 
whose  reason,  conscience  and  judgment  are  so  overwhelmed  by 
the  violence  of  disease  as  to  act  from  an  uncontrollable  impulse. 
In  both  cases  it  is  an  act  in  which  reason,  conscience,  judgment 
and  will  do  not  participate ;  in  a  word,  it  is  the  product  of  men- 
tal disease. 

Power  of  memory  sufficient  to  recollect  the  relations  in  which 
he  stands  to  others  and  in  which  others  stand  to  him,  which  is 
given  as  the  third  test,  seems  to  me  no  more  a  legal  criterion  than 
power  of  memory  to  recollect  any  other  fact  which  a  healthy 
mind  would  be  expected  to  remember,  and  such  power  of  memory 
or  its  lack  would  be  a  fact,  like  other  facts,  for  the  jury  to  weigh 
in  judging  whether  he  had  the  mental  capacity  to  entertain  a 
criminal  intent. 

There  is  no  doubt  but  these  instructions  of  the  learned  and 
eminent  chief  justice  of  Massachusetts  have  been  largely  followed 
in  cases  since  tried  in  this  country,  but  the  course  has  been  by  no 
means  uniform,  as  we  shall  see. 

§  405.  New  York  and  Pennsylvania  Cases  Considered.— 
In  New  York   and    Pennsylvania,  in   the  two  leading  cases  of 


G52  LAW    OF    EVIDENCE    IN    CRIMINAL    CASES. 

Freeman  v.  People,  4  Denio,  9,  47  Am.  Dec.  216,  and  Com.  v. 
Mosler,  4  Pa.  2(37,  capacity  to  distinguish  right  from  wrong  was 
given  as  the  naked  test.  But  in  neither  of  those  states  has  the 
rule  thus  laid  down  been  followed  with  uniformity.  In  the  trial 
of  Huntington  for  forgery,  iti  Xew  York  City,  in  1856,  Judge 
Capron  said  to  the  jury:  "To  constitute  a  complete  defense,  in- 
sanity, if  partial,  as  monomania,  must  be  such  in  degree  as  to 
wholly  deprive  the  accused  of  reason  in  regard  to  the  act  with 
which  he  is  charged,  and  of  the  knowledge  that  he  is  doing  wrong 
in  committing  it."  And  the  remarks  of  Edmonds,  J.,  in  the  ear- 
lier case  of  People  v.  Kleim,  1  Edm.  Sel.  Cas.  13,  are  wholly 
at  war  with  any  such  rule  as  that  promulgated  in  Freeman  v. 
People,  supra.  He  says  :  "  The  moral  as  well  as  the  intellectual 
faculties  may  be  so  disordered  by  the  disease  as  to  deprive  the 
mind  of  its  controlling  and  directing  power,  and  that  he  must 
know  the  act  to  be  wrong  and  punishable,  and  be  able  to  compare 
and  choose  between  doing  it  and  not  doing  it." 

In  Pennsylvania,  in  Com.  v.  Knepley  (1850)  knowledge  of 
right  and  wrong  in  regard  to  the  particular  act  was  given  as  the 
test;  and  in  Com.  v.  Haskell,  2  Brewst.  491,  the  judge  charged 
that  "the  true  test  lies  in  the  word  'power.'  Has  the  defendant, 
in  a  criminal  case,  the  power  to  distinguish  right  from  wrong,  and 
the  power  to  adhere  to  the  right  and  avoid  the  w rong  ? " 

It  would  probably  not  be  far  out  of  the  way  to  say  that  the 
number  of  American  cases  where  knowledge  of  right  and  wrong 
in  the  abstract,  and  knowledge  of  the  nature  and  quality  of  the 
act — that  it  was  wrong — have  been  given  as  the  test,  is  about 
equal  to  the  tendency  of  late  years  to  the  latter  form,  while  it 
will  appear  that,  in  almost  every  case  where  any  rule  has  been 
given  on  the  subject,  it  has  been  modified  and  explained  to  meet 
the  facts  of  the  particular  case,  or  to  carry  out  the  personal  views 
of  the  judge  on  the  matter  of  insanity. 

§  406.  Instances  where  all  Tests  have  been  Discarded. — 
But  there  are  not  wanting  cases  where  all  tests  have  been  dis- 
carded. In  Statt  v.  Ft  Iter,  25  Iowa,  67,  Dillon,  Ch.  J.,  says:  "The 
jury,  in  substance,  should  be  told  that  if  the  defendant's  act  in 
taking  the  life  of  his  wife  was  accused  of  mental  disease  or  un- 
dness,  which  dethroned  his  reason  and  judgment  with  respect 
to  that  act.  which  destroyed  his  power  rationally  to  comprehend 
the  nature  and  consequences  of  that  act,  and  which,  overpowering 


EVIDENCE   OF   INSANITY.  653 

his  will,  irresistibly  forced  him  to  its  commission,  then  he  is  not 
amenable  to  legal  punishment.  But  if  the  jury  believe,  from  all 
the  evidence  and  circumstances,  that  the  defendant  was  in  posses- 
sion of  a  rational  intellect  and  sound  mind,  and  allowed  his  pas- 
sions to  escape  control,  then,  though  passion  may  for  the  time 
being  have  driven  reason  from  her  seat  and  usurped  it,  and  have 
urged  the  defendant,  with  a  force  at  the  moment  irresistible,  to 
desperate  acts,  he  cannot  claim  for  such  acts  the  protection  of 
insanity."  And  in  Stevens  v.  State,  31  Ind.  485,  99  Am.  Dec. 
634,  9  Am.  Reg.  N.  S.  530,  which  was  an  indictment  for  murder, 
and  the  defense  insanity,  an  instruction  to  the  jury  that,  if  they 
believed  the  defendant  knew  the  difference  between  right  and 
wrong  in  respect  to  the  act  in  question,  if  he  was  conscious  that 
such  act  was  one  which  he  ought  not  to  do,  he  was  responsible, 
was  held  erroneous. 

In  the  course  of  his  opinion  in  that  case,  Gregory,  J.,  speaking 
of  the  charge  in  Com.  v.  Bayers,  7  Met.  500,  41  Am.  Dec.  458, 
said :  "  It  is  by  no  means  clear,  and  we  think  it  is  not  entitled  to 
the  weight  usually  awarded  it." 

Very  much  to  the  same  effect  was  State  v.  Spencer,  21  N.  J.  L. 
196,  Hornblower,  Ch.  J.,  said  :  "  In  my  judgment  the  true  ques- 
tion to  be  put  to  the  jury  is,  whether  the  prisoner  was  insane  at 
the  time  of  committing  the  act,  and  in  answer  to  that  question 
there  is  little  danger  of  a  jury  giving  a  negative  answer,  and  con- 
victing a  prisoner  who  is  proved  to  be  insane  on  the  subject-mat- 
ter relating  to  or  connected  with  the  criminal  act,  or  proved  to  be 
so  far  or  so  generally  deranged  as  to  render  it  difficult  or  almost 
impossible  to  discriminate  between  his  sane  and  insane  acts." 
State  v.  Jones,  50  N.  H.  369,  9  Am.  Rep.  242. 

§  407.  Delaware  Adopts  the  New  Hampshire  View. — The 
Delaware  supreme  court,  after  a  struggle  with  its  instincts,  adopted 
the  New  Hampshire  view,  and  holds  that  the  true  test  is  not,  as 
sometimes  laid  down,  the  capacity  merely  to  distinguish  between 
the  rightfulness  and  wrongfulness  of  the  act  committed,  but  also 
sufficient  will  power  to  choose  whether  he  shall  do  or  refrain 
from  doing  it.  After  referring  to  many  cases  upon  the  same  sub- 
ject, the  learned  judge  proceeded  to  say:  "We  do  not  perceive 
that  there  is  any  very  great  difference  in  all  these  cases,  the  aim 
of  all  seeming  to  be  to  define  a  state  of  mind  in  which  the  pris- 
oner is  capable  of  the  perception  or  consciousness  of  right  and 


651  LAW    OF    EVIDENCE    IN    CKTMINAL   CASES. 

wrong  as  applied  to  the  act  he  is  about  to  commit,  and  has  the 
ability,  through  that  consciousness,  to  choose,  by  an  effort  of  the 
will,  whether  he  will  do  the  deed  which  he  knows  to  be  wrong." 
In  his  report  of  the  case,  the  words  quoted  are  italicised  by  him  to 
show  the  approval  of  the  court  of  the  definition  of  "sanity,"  which 
as  before  said,  is  knowledge  of  the  rightfulness  or  wrongfulness  of 
the  contemplated  action, — the  power  to  decide  against  doing  the 
wrongful  deed.     State  v.  Reidell  (Del.)  May  18,  1888. 

§  108.  The  Right  and  Wrong  Test  in  Formulas.— There 
are  some  obiter  dicta  which  would  seem  to  evidence  an  intention 
to  shroud  this  doctrine  in  doubt,  or  to  hamper  it  with  conditions 
subversive  of  its  clearness  and  efficacy.  There  is  no  occasion 
however  for  this  obscurity.  The  rule  generally  in  vogue  may  be 
formulated  as  follows :  "  The  true  test  of  criminal  responsibility 
where  the  defense  of  insanity  is  interposed  to  an  indictment,  is 
whether  the  evidence  shows  that  the  accused  had  sufficient  reason 
to  know  right  from  wrong."  Upon  this  simple  test  has  been 
engrafted  an  entirely  different  proposition.  It  is  this  :  "  and  in 
addition  to  this  knowledge,  has  he  sufficient  power  of  control  to 
govern  his  actions?"  Satisfactory  evidence  of  this  last  is  a  diffi- 
cult matter  to  obtain.  The  extent  to  which  a  person  can  control 
his  actions  under  all  the  varying  impulses  aroused  by  passion, 
fear,  avarice  or  religious  frenzy,  is  a  delicate  determination. 
Frequently  to  reach  a  proper  conclusion  expert  medical  testimony 
is  required,  and  such  testimony  too  frequently  'k  leads  to  bewilder 
and  dazzles  to  betray." 

When  an  expert  is  called  on  to  determine  whether  the  mind  is 
diseased  to  such  an  extent  as  to  make  the  person  an  irresponsible 
being,  the  task  is  much  more  difficult.  Especially  is  this  true 
where  the  opinion  must  be  formed  and  based  upon  a  hypothetical 
question  alone.  In  such  case,  it  seems  to  us  that  the  opinion 
must,  of  necessity,  be  mere  theory.  This  is  not  the  fault  of  the 
profession,  but  because  more  than  human  intelligence  is  required 
to  solve  the  problem. 

This  right  and  wrong  test  has  been  a  persistent  subject  of 
attack.  Seldom  if  ever  in  a  capital  case  is  the  ingenuity  of  the 
counsel  for  the  accused  more  strenuously  exerted  than  in  the 
attempt  to  inject  into  the  general  defense  of  insanity  the  theory, 
Borne  mysterous  pressure  to  the  commission  of  the  acts,  the  con- 
sequence of  which  he  anticipates  but  cannot  avoid. 


EVIDENCE    OF    INSANITY.  655- 

"Whatever  medical  or  scientific  authority  there  may  be  for  this 
view,  it  has  not  been  accepted  by  courts  of  law.  The  vagueness 
and  uncertainty  of  the  injury  which  would  be  opened,  and  the 
manifest  danger  of  introducing  the  limitation  claimed  into  the 
rule  of  responsibility,  in  cases  of  crime,  may  well  cause  courts  to 
pause  before  assenting  to  it. 

Indulgence  in  evil  passions  weakens  the  restraining  power  of 
the  will  and  conscience;  and  the  rule  suggested  would  be  the 
cover  for  the  commission  of  crime  and  its  justification.  The  doc- 
trine that  a  criminal  act  may  be  excused  upon  the  notion  of  an 
irresistible  impulse  to  commit  it.  where  the  offender  lias  the  ability 
to  discover  his  legal  and  moral  duty  in  respect  to  it,  lias  no  place 
in  the  law.  Every  crime  was  committed  under  an  influence  of 
such  a  description,  and  the  object  of  the  lav,'  is  to  compel  people 
to  control  these  influences.  The  doctrine  of  irresponsibility  tor 
a  crime  committed  by  a  person  who  had  sufficient  mental  capacity 
to  comprehend  the  nature  and  quality  of  his  act,  and  to  know 
that  it  was  wrong,  on  the  ground  that  he  had  not  the  power  to 
control  his  action,  has  not  met  with  favor  in  the  adjudications  in 
the  state  of  New  York.  Flanagan  v.  People,  52  N.  Y.  467,  11 
Am.  Rep.  731. 

§  409.  Liberal  Views  of  the  Alabama  Supreme  Court.— I 
shall  elaborate  the  treatment  of  this  subject  with  the  following- 
extended  extracts  from  the  exceptionally  able  opinion  of  Mr. 
Justice  Somervillein  Parsons  v.  State,  81  Ala.  577,  60  Am.  Rep. 
193.  Taken  together  with  the  dissenting  opinion  of  ( 1h  ief  Justict 
Stone  in  the  same  case,  there  is  a  presentation  of  the  topic  under 
review,  that  seems  to  exhaust  the  subject.  Few  opinions  even 
from  this  able  court  are  so  freighted  in  logical  exposition, 
keen  and  discriminating  analysis,  extended  collation  of  author- 
ity and  scholarly  research.  Especially  is  this  true  when  we 
reflect  that  of  all  medico-legal  questions  those  connected  with 
insanity  are  the  most  difficult  and  perplexing.  State  v.  Fetter, 
25  Iowa,  67. 

Judge  Somerville  says:  "We  do  not  hesitate  to  say  that 
we  reopen  the  discussion  of  this  subject  with  no  little  reluctance, 
having  long  hesitated  to  disturb  our  past  decisions  on  this  branch 
of  the  law.  Nothing  could  induce  us  to  do  so  except  an  imperious 
sense  of  duty,  which  bus  been  excited  by  a  protracted  investiga- 
tion and  study,  impressing  our  minds  with  the  conviction  that  the 


656  LAW    OF    EVIDENCE    IN    CRIMINAL    CASES. 

law  of  insanity  as  declared  by  the  courts  on  many  points,  and 
especially  the  rule  of  criminal  accountability,  and  the  assumed 
tests  of  disease,  to  that  extent  which  confers  legal  irresponsibility, 
have  not  kept  pace  with  the  progress  of  thought  and  discovery  in 
the  present  advanced  stages  of  medical  science.  Though*  science 
has  led  the  way,  the  courts  of  England  have  declined  to  follow,  as 
shown  by  their  adherence  to  the  rulings  in  McNagliteri 's  Case,  10 
Clark  &  F.  200,  emphasized  by  the  strange  declaration  made  by 
the  lord  chancellor  of  England,  in  the  house  of  lords,  on  so  late  a 
day  as  March  11,  1862,  that  'the  introduction  of  medical  opinions 
and  medical  theories  into  this  subject  has  proceeded  upon  the 
vicious  principle  of  considering  insanity  as  a  disease.' 

a.  As  to  Medical  Experts. — "It  is  obvious  that  the  courts 
cannot  upon  any  sound  principle  undertake  to  say  what  are  the 
invariable  or  infallible  tests  of  such  disease.  The  attempt  has 
been  repeatedly  made,  and  has  proved  a  confessed  failure  in 
practice.  '  Such  a  test,'  says  Mr.  Bishop,  has  never  been  found, 
not  because  those  who  have  searched  for  it  have  not  been  able 
and  diligent,  but  because  it  does  not  exist.'  1  Bishop,  Crim. 
L.  (7th  ed.)  §  381.  In  this  conclusion,  Dr.  Ray,  in  his  learned 
work  on  the  medical  jurisprudence  of  insanity,  fully  concurs. 
Ray,  Insanit}',  39.  The  symptoms  and  causes  of  insanity  are  so 
variable,  and  its  pathology  so  complex,  that  no  two  cases  may  be 
just  alike.  'The  fact  of  its  existence,'  says  Dr.  Ray,  'is  never 
established  by  any  single  diagnostic  symptom,  but  by  the  whole 
body  of  symptoms,  no  particular  one  of  which  is  present  in  every 
case.'  Ray,  Insanity,  §  21.  Its  exciting  causes  being  moral, 
psychical  and  physical,  are  the  especial  subjects  of  specialists' 
study.  What  effect  may  be  exerted  on  the  given  patient  of  age, 
sex,  occupation,  the  seasons,  personal  surroundings,  hereditary 
transmission  and  other  causes,  is  the  subject  of  evidence  based  on 
investigation,  diagnosis,  observation  and  experiment.  Peculiar 
opportunities,  never  before  enjoyed  in  the  history  of  our  race,  are 
offered  in  the  present  age  for  the  ascertainment  of  these  facts,  by 
the  establishment  of  asylums  for  the  custody  and  treatment  of 
the  insane,  which  Christian  benevolence  and  statesmanship  have 
substituted  for  jails  and  gibbets.  The  testimony  of  these  experts 
(Miller  as  they  may  in  many  doubtful  cases)  would  seem  to  be  the 
best  which  can  be  obtained,  however  unsatisfactory  it  may  be  in 
some  respects.    .     .     . 


EVIDENCE   OF    INSANITY.  657 

"In  Bucknill  on  Criminal  Lunacy,  page  59,  it  is  asserted  as  'the 
result  of  observation  and.  experience,  that  in  all  lunatics,  and  in 
the  most  degraded  idiots,  whenever  manifestations  of  any  mental 
action  can  be  educed,  the  feeling  of  right  and  wrong  may  be 
proved  to  exist.' 

"  'With  regard  to  this  test,'  says  Dr.  Eussell  Reynolds,  in  his 
work  on  the  Scientific  Value  of  the  Legal  Tests  of  Insanity 
(London,  1872),  p.  34,  '  I  may  say,  and  most  emphatically,  that  it 
is  utterly  untrustworthy,  because  untrue  to  the  obvious  facts  of 
nature.' 

"In  the  learned  treatise  of  Drs.  Bucknill  and  Tuke  on  Psycho- 
logical Medicine  (4th  ed.  London,  1879),  p.  269,  the  legal  tests  of 
responsibility  are  discussed,  and  the  adherence  of  the  courts  to 
the  right  and  wrong  test  is  deplored  as  unfortunate,  the  true 
principle  being  stated  to  be,  'whether,  in  consequence  of  con- 
genital defect  or  acquired  disease,  the  power  of  self-control  is 
absent  altogether,  or  is  so  far  wanting  as  to  render  the  individual 
irresponsible.'  It  is  observed  by  the  authors:  'As  has  again 
and  again  been  shown,  the  unconsciousness  of  right  and  wrono-  is 
one  thing,  and  the  powerlessness  through  cerebral  defect  or 
disease  to  do  right  is  another.  To  confound  them  in  an  asylum 
would  have  the  effect  of  transferring  a  considerable  number  of  the 
inmates  thence  to  the  treadmill  or  the  gallows.' 

"Dr.  Peter  Bryce,  superintendent  of  the  Alabama  Insane  Asylum 
for  more  than  a  quarter  century  past,  alluding  to  the  moral  and 
disciplinary  treatment  to  which  the  insane  inmates  are  subjected, 
observes:  'They  are  dealt  with  in  this  institution,  as  far  as  it 
is  practicable  to  do  so,  as  rational  beings;  and  it  seldom  happens 
that  we  meet  with  an  insane  person  who  cannot  be  made  to  dis- 
cern, to  some  feeble  extent,  his  duties  to  himself  and  others,  and 
his  true  relations  to  society.'  Sixteenth  Annual  Report  Alabama 
Insane  Hospital  (1876)  p.  22;  Biennial  Report  (18S6)  pp.  12   L8. 

"  Other  distinguished  writers  on  the  medical  jurisprudence  of 
insanity  have  expressed  like  views,  with  comparative  unanimity. 
And  nowhere  do  we  find  the  rule  more  emphatically  condemned 
than  by  those  who  have  the  practical  care  and  treatment  of  the 
insane  in  the  various  lunatic  asylums  of  avcry  civilized  country. 
A  notable  instance  is  found  in  the  following  resolution  unani- 
mously passed  at  the  annual  meeting  of  the  British  Association 
of  Medical  Officers  of  Asylums  and  Hospitals  for  the  Insane,  held 
42 


658  LAW  OF  EVIDENCE  IN  CRIMINAL  CASES. 

in  London,  July  14,  1S64,  where  there  were  present  fifty-four 
medical  officers : 

"  '■Resolved,  That  so  much  of  the  legal  test  of  the  mental  con- 
dition of  an  alleged  criminal  lunatic  as  renders  him  a  responsible 
agent,  because  he  knows  the  difference  between  right  and  wrong, 
is  inconsistent  with  the  fact,  well  known  to  every  member  of  this 
meeting,  that  the  power  of  distinguishing  between  right  and 
wrong  exists  very  frequently  in  those  who  are  undoubtedly 
insane,  and  is  often  associated  with  dangerous  and  uncontrollable 
delusions.'  Ordronaux,  Judicial  Aspects  of  Insanity  (1877)  423, 
424. 

"These  testimonials  as  to  a  scientific  fact  are  recognized  by  intel- 
ligent men  in  the  affairs  of  every-day  business,  and  are  constantly 
acted  on  by  juries.  They  cannot  be  silently  ignored  by  judges. 
Whether  established  or  not,  there  is  certainly  respectable  evidence 
tending  to  establish  it,  and  this  is  all  the  courts  can  require. 

"Nor  are  the  modern  law  writers  silent  in  their  disapproval  of 
the  alleged  test  under  discussion.  It  meets  with  the  criticism  or 
condemnation  of  the  most  respectable  and  advanced  in  thought 
among  them,  the  tendency  being  to  incorporate  in  the  legal  rule 
of  responsibility  '  not  only  the  knowledge  of  good  and  evil,  but 
the  power  to  chose  the  one  and  refrain  from  the  other.'  Browne, 
Insanity,  §§  13,  18,  et  seq.;  Ray,  Insanity,  §§  10-19;  "Whart.  & 
S.  Medical  Jurisprudence,  §  59;  1  Whart.  Am.  Crim.  L.  (9th  ed.) 
§§  33,  43,  45;  1  Bishop,  Crim.  L.  (7th  ed.)  §  386,  et  seq.;  Ordro- 
naux, Judicial  Aspects  of  Insanity  (1877)  419;  1  Greenl.  Ev. 
§  372;  1  Stephen,  Hist.  Crim.  L.  §  168;  4  Am.  L.  Eev.  236,  et 
seq." 

b.  But  Three  Questions  for  the  Jury. — In  conclusion  of  this 
branch  of  the  subject,  that  we  may  not  be  misunderstood,  we 
think  it  follows  very  clearly  from  what  we  have  said,  that  the 
inquiries  to  be  submitted  to  the  jury  then,  in  every  criminal  trial 
where  the  defense  of  insanity  is  interposed,  are  these: 

1.  Was  the  defendant  at  the  time  of  the  commission  of  the 
alleged  crime,  as  matter  of  fact,  afflicted  with  a  disease  of  the 
mind,  so  as  to  be  either  idiotic  or  otherwise  insane? 

2.  If  such  be  the  case,  did  he  know  right  from  wrong  as  applied 
to  the  particular  act  in  question  ?  If  he  did  not  have  such  knowl- 
edge he  is  not  legally  responsible. 

3.  If  he  did  have  such  knowledge,  he  may  nevertheless  not  be 


EVIDENCE    OF    INSANITY.  659 

leg-ally  responsible  if  the  two  following  conditions  concur:  (1)  If, 
by  reason  of  the  duress  of  such  mental  disease,  he  had  so  far  lost 
the  power  to  choose  between  the  right  and  wrong,  and  to  avoid 
doing  the  act  in  question,  as  that  his  free  agency  was  at  the  time 
destroyed.  (2)  And  if,  at  the  same  time,  the  alleged  crime  was 
so  connected  with  such  mental  disease,  in  the  relation  of  cause 
and  effect,  as  to  have  been  the  product  of  it  solely. 

c.  Modification  of  the  Rule  in  Boswell's  Case.— The  rule 
announced  in  Boswell  v.  State,  63  Ala.  308,  35  Am.  Rep.  20,  is 
in  conflict  with  the  foregoing  conclusions,  and  to  that  extent  is 
declared  incorrect,  and  is  not  supported  by  the  opinion  in  that 
case  otherwise  than  by  dictum,. 

"We  adhere  however  to  the  rule  declared  by  this  court  in  Bos- 
well's  case,  and  followed  in  Ford  v.  State,  71  Ala.  385,  holding 
that  when  insanity  is  set  up  as  a  defense  in  a  criminal  case,  it 
must  be  established  to  the  satisfaction  of  the  jury,  by  a  prepond- 
erance of  the  evidence;  and  a  reasonable  doubt  of  the  defendant's 
sanity,  raised  by  all  the  evidence,  does  not  authorize  an  acquittal. 

d.  "Right  and  Wrong"  Test  Denounced. — The  leading  writ- 
ers on  medical  jurisprudence  and  insanity  do  not  look  with  favor 
on  the  right  and  wrong  test.  See  "Wharton  &  Stille,  Beck,  Dean, 
and  Taylor's  works  on  Medical  Jurisprudence,  Ray  on  Insanity, 
and  Browne  on  Medical  Jurisprudence  of  Insanity. 

The  American  authorities  differ  somewhat,  and  in  most  cases 
very  widely. 

In  People  v.  Kleirrv,  an  early  case  in  this  state,  Judge  Edmonds 
charged  the  jury:  "If  some  controlling  disease  was  in  truth  the 
acting  power  within  him,  which  he  could  not  resist,  or  if  he  had 
not  sufficient  use  of  his  reason  to  control  the  passions  which 
promoted  him,  he  is  not  responsible.  But  it  must  be  an  absolute 
dispossession  of  the  free  and  natural  agency  of  the  mind.  .  .  . 
If  he  have  not  intelligence  enough  to  have  a  criminal  intent  and 
purpose,  and  if  his  moral  and  intellectual  powers  are  either  so 
deficient  that  he  has  not  sufficient  will,  conscience  or  controlling 
mental  power,  or  if,  through  the  overwhelming  violence  of  mental 
diseases,  his  intellectual  power  is  for  the  time  obliterated,  he  is 
not  a  responsible  moral  agent."  People  v.  Kleim,  I  Edm.  Sel. 
Cas.  13. 

"The  question  will  be  whether  the  disease  existed  to  so  high  a 
degree  that  for   the  time   being  it  overwhelmed  the  reason,  con- 


660  LAW    OF    EVIDENCE    IN    CRIMINAL    CASES. 

science  and  judgment,  and  whether  the  prisoner,  in  committing 
the  homicide,  acted  from  an  irresistible  and  uncontrollable 
impulse;  if  so,  then  the  act  was  not  the  act  of  a  voluntary  agent, 
but  the  involuntary  act  of  the  body  without  the  concurrence  of  a 
mind  directing  it."  Com.  v.  Rogers,  1  Bennett  &  Heard,  Lead. 
Crim.  Cas.  (2d  ed.)  87,  7  Met.  500,  41  Am.  Dec.  458.  See  Free- 
man v.  People,  4  Denio,  9,  47  Am.  Dec.  216;  Cole's  Case,  7  Abb. 
Pr.  K  S.  321. 

In  People  v.  MeFarland,  8  Abb.  Pr.  K  S.  57,  Recorder  Hack- 
ett  defined  the  state  of  sanity  of  a  party  who  is  accused  of  a  crim- 
inal act  to  be  that  in  which  a  man  knows  the  act  he  is  committing 
to  be  unlawful  and  morally  wrong  and  he  has  not  reason  sufficient 
to  apply  such  knowledge,  and  to  be  controlled  by  it;"  "and  the 
state  of  insanity  in  a  similar  case  as  that  in  which  a  man  does  not 
know  the  act  he  is  committing  to  be  unlawful  and  morally  wrong, 
and  he  has  not  reason  sufficient  to  apply  such  knowledge,  and  to 
be  controlled  by  it."  People  v.  MeFarland,  supra.  See  also 
People  v.  McCarm,  16  K  Y.  58,  69  Am.  Dec.  642  (prisoner  enti- 
tled to  an  acquittal  if  there  be  a  reasonable  doubt  as  to  his  sanity); 
Com.  v.  Mosler,  4  Pa.  267  (where  the  court  recognizes  homicidal 
insanity  as  an  excuse  for  crime).  See  Huntingdon's  Case, 
pamphlet. 

In  the  case  of  Stevens  v.  State,  31  Ind.  485,  99  Am.  Dec.  634, 
the  supreme  court  of  that  state  held  that  where  a  person  is  moved 
to  the  commission  of  an  unlawful  act  by  an  insane  impulse  con- 
trolling his  will  and  his  judgment,  he  is  not  guilty  of  a  crime,  and 
the  court  held  to  be  erroneous  a  charge  to  the  jury  that  if  they 
believed  from  the  evidence  "that  the  defendant  knew  the  differ- 
ence between  right  and  wrong  in  respect  to  the  act  in  question,  if 
lie  was  conscious  that  such  act  was  one  which  he  ought  not  to  do, 
and  if  that  act  was  at  the  same  time  contrary  to  the  law  of  the 
state,  then  he  is  responsible  for  his  acts." 

In  the  important  case  of  Smith  v.  Com.  1  Duv.  225,  the  court, 
after  a  very  exhaustive  discussion  of  the  subject  of  insanity,  held 
to  be  correct  an  instruction  to  the  jury  that  "the  true  test  for 
responsibility  is  whether  the  accused  had  sufficient  reason  to  know 
right  from  wrong,  and  whether  or  not  he  had  sufficient  power  of 
control  to  govern  his  actions."  This  instruction  which  was  taken 
from  the  case  of  Graham  v.  Com.  16  B.  Mon.  591,  and  approved 
by  tiie  Kentucky  court  of  appeals,  is  the  precise  request  which  in 
the  above  case  the  recorder  refused  to  charge  the  jury. 


EVIDENCE  OF  INSANITY.  661 

"The  true  test  lies  in  the  word  'power.'  Has  the  defendant  in 
a  criminal  case  the  power  to  distinguish  right  from  wrong,  and 
the  power  to  adhere  to  the  right  and  avoid  the  wrong.  Has  the 
defendant,  in  addition  to  the  capacities  mentioned,  the  power  to 
govern  his  mind,  his  hody  and  his  estate."  Com.  v.  Haskell,  2 
Brewst.  491,  4  Am.  L.  Rev.  240.  See  also  State  v.  Pike,  49  N. 
H.  399,  6  Am.  Eep.  533,  4  Am.  L.  Rev.  245. 

The  result  is  that  the  "right  and  wrong  test,"  as  it  is  sometimes 
called,  which,  it  must  be  remembered,  itself  originated  with  the 
medical  profession  in  the  mere  dawn  of  the  scientific  knowledge 
of  insanity,  has  been  condemned  by  the  great  current  of  modern 
medical  authorities,  who  believe  it  to  be  "founded  on  an  ignorant 
and  imperfect  view  of  the  disease."  15  Enc.  Brit.  (9th  ed.)  title 
Insanity;  Pat-sons  v.  State,  81  Ala,  577,  60  Am.  Rep.  193. 

e.  Rule  of  the  French  and  German  Criminal  Codes  Stated. 
— The  Code  of  France  provides:  "There  can  be  no  crime  or  offense 
if  the  accused  was  in  a  state  of  madness  at  the  time  of  the  act." 
For  some  time  the  French  tribunals  were  inclined  to  interpret  this 
law  in  such  a  manner  as  to  follow  in  substance  the  law  of  England. 
But  that  construction  has  been  abandoned,  and  the  modern  view 
of  the  medical  profession  is  now  adopted  in  that  country. 

The  criminal  code  of  Germany  contains  the  following  provision 
which  is  said  to  have  been  the  formulated  result  of  a  very  able 
discus-ion  by  both  the  physicians  and  lawyers  of  that  country: 
"There  is  no  criminal  act  when  the  actor  at  the  time  of  the  offense 
is  in  a  state  of  unconsciousness,  or  morbid  disturbance  of  the  mind, 
throuo-h  which  the  free  determination  of  his  will  is  excluded."  9 
Enc.  Brit.  (9th  ed.),  citing  Crim.  Code,  Germany,  §  51,  R.  G.  B. 
Parsons  v.  State,  supra. 

f.  Dissenting  Views  of  Chief  Justice  Stone. — Chief  Justice 
Stone  in  his  dissenting  opinion  in  this  highly  instructive  case  of 
Parsons  v.  State,  81  Ala.  577,  60  Am.  Rep.  193,  note,  summarizes 
his  views  on  this  question  of  insanity  as  follows  : 

"1.  Insanity,  when  relied  on  as  a  defense  to  a  prosecution  for 
crime,  is  a  mixed  question  of  law  and  fact. 

"2.  It  is  a  perfect  defense  to  an  accusation  of  crime,  if  the  ac- 
cused, at  the  time  he  committed  the  act,  was  afflicted  with  a  men- 
tal disease  to  such  extent  as  to  render  him  incapable  of  determin- 
ing between  right  and  wrong,  or  of  perceiving  the  true  nature 
and  quality  of  the  act  done. 


002  LAW    OF    EVIDENCE    IN    CRIMINAL    CASES. 

"3.  "When  it  is  satisfactorily  shown  that  the  accused  was  men- 
tally diseased  at  the  time  he  did  the  act  charged  as  an  offense,  and 
that  he  did  the  act  in  consequence  solely  of  such  mental  disease, 
without  which  it  would  not  have  been  done,  this  is  a  complete 
defense,  even  though  the  defendant  knew  the  act  was  wrong. 

"4.  When  at  the  time  of  committing  the  act  charged,  the 
defendant  was  laboring  under  a  disease  of  the  mind,  known  as 
delusion,  illusion,  or  hallucination,  and  the  act  done  was  solely  the 
result  of  such  mental  disease,  connected  with  and  growing  out  of 
it  as  effect  follows  cause,  and  without  which  the  act  would  not 
have  been  done,  the  defendant  should  be  acquitted  on  the  plea  of 
insanity.     Whart.  Crim.  Ev.  §  336;  2  Greenl.  Ev.  §  372. 

"5.  No  form  of  moral  or  emotional  insanity  is  a  defense  against 
criminal  accusation. 
********         *         *         *         * 

"I  differ  with  my  brother  Somerville  in  the  interpretation  of 
some  of  the  legal  authorities  he  relies  on  as  supporting  his  views, 
and  as  to  others,  in  the  estimate  he  places  upon  them  as  authority. 
This  court  has  repudiated  the  doctrine  of  moral  insanity  as  a 
defense  for  conduct  otherwise  criminal;  and  we  hold  that  insanity 
is  a  defense  to  be  affirmatively  established  by  proof.  It  is  not 
enough  that  a  reasonable  doubt  of  sanity  is  engendered.  Boswell 
v.  State,  63  Ala.  307,  35  Am.  Eep.  20;  Ford  v.  State,  71  Ala.  385. 
Of  the  judicial  authorities  relied  on  by  him,  the  following  cases 
hold  that  the  defense  of  insanity  is  made  good,  if  the  testimony 
raises  a  reasonable  doubt  of  its  existence.  Some  of  them  go  so 
far  as  to  hold  that  when  any  evidence  of  insanity  is  produced, 
the  burden  is  then  cast  on  the  prosecution  to  establish  sanity  be- 
yond a  reasonable  doubt.  State  v.  Jones,  50  N.  H.  309,  9  Am. 
Rep.  %4%;Bradley  v.  State,  Zl  Ind.  492;  Hopps  v.  People,  31  111. 
385,  83  Am.  Dec.  231;  Cunningham  v.  State,  56  Miss.  269,  21 
Am.  Eep.  360;  State  v.  Johnson,  40  Conn.  130." 

The  learned  judge  proceeds  to  dissect  the  cases  bearing  upon 
the  subject,  and  the  practitioner  who  is  confronted  with  any  prob- 
lem associated  with  the  topic  of  insanity  would  do  well  to  consult 
the  following  cases :  State  v.  Felter,  25  Iowa,  08;  State  v.  Hock- 
ett,  70  Iowa,  442;  Hopps  v.  People,  supra,'  Dunn  v.  People,  109 
111.  635;  Chase  v.  People,  40  111.  353;  Bradley  v.  State,  31  Ind. 
492;  Walker  v.  State,  102  Ind-.  502;  Harris  v.  State,  18  Tex.  App. 
l>-7;  Smith  v.  Com.  1  Duv.  224;  Kriel  v.  Com.  5  Bush,  302;  Can- 


EVIDENCE    OF    INSANITY.  G63 

-ningham  v.  State,  56  Miss.  269,  21  Am.  Rep.  360;  United  States 
v.  McGlue,  1  Curt.  C.  C.  1;  Com.  v.  Rogers,  7  Met.  500,  41  Am. 
Dee.  458;  Dejarnette  v.  Com.  75  Ya.  867;  Cbyfe  v.  <7<?m.  100  Pa. 
573,  45  Am.  Eep.  397;  State  v.  Johnson,  supra;  Anderson  v. 
State,  43  Conn.  514,  21  Am.  Rep.  669;  State  v.  Hoyt,  46  Conn. 
330;  State  v.  Pike,  49  N.  11.  399,  6  Am.  Rep.  533;  State  v. 
Howry,  37  Kan.  369;  State  v.  JPfcon*  32  Kan.  205;  State  v.  ita- 
^ete,  92  Mo.  300. 

g.  A  Cautionary  Paragraph.  —  I  cannot  leave  this  highly 
important  subject  without  a  cautionary  paragraph.  It  must  be 
steadily  borne  in  mind,  that  great  contradiction  prevails  in  the 
judicial  comment;  and  notwithstanding  repeated  adjudication 
from  verv  able  courts,  this  contradiction  is  far  from  even  surest- 
ing  ultimate  harmony.  The  elaborate  and  ingenious  argument 
of  Judge  Somerville  is  based  upon  critical  study  of  the  subject, 
and  is  a  very  plausible  presentation  of  the  case.  We  should 
avoid  the  least  tendency  to  generate  an  animosity  fatal  to  a  just 
estimate  of  either  as  it  is  from  the  coalescence  of  antagonistic 
ideas,  each  containing  its  modicum  of  truth  that  there  arises  a 
higher  development  and  a  more  perfect  law. 

§410.  The  Problem  Considered  by  Dr.  Ordronaux. — "A 
series  of  decisions  develop  the  doctrine  that  insanity  must  be 
established  by  a  preponderance  of  evidence,  although  not  neces- 
sary to  be  established  beyond  a  reasonable  doubt.  This  qualifica- 
tion softens  somewhat  the  rigor  of  the  original  rule,  but  does  not 
relieve  it  entirely  of  its  injustice.  A  preponderance  of  evidence 
in  relation  to  establishing  a  matter  of  inference  even,  as  in  the 
case  of  establishing  such  inference  beyond  a  reasonable  doubt,  is  a 
conclusion  quite  as  difficult  for  a  jury  to  arrive  at  as  any  other 
disputed  fact  about  which  no  positive  proof  can  be  adduced.  A 
party's  insanity  is  inferred  by  one  set  of  experts;  it  is  denied  by 
another — both  sets  drawing  their  conclusions  from  the  same  prem- 
ises, but  each  under  a  different  angle  of  vision.  Suppose  there 
are  seven  experts  called,  three  of  whom  testify  to  sanity  and  four 
to  insanity  in  the  prisoner.  How  much  shall  those  three,  added 
to  the  general  presumption  of  sanity,  weigh   as  against  the  four? 

"This  problem  of  what  constitutes  a  preponderance  of  evidence 
in  favor  of  insanity  will  be  found  full  of  uncertainties  and  hedged 
about  with  doubts  on  every  side.  Its  complete  solution  always 
involves  the  necessity  of  reasoning  more  or  less  in  a  circle,  and, 


604  LAW    OF    EVIDENCE    IN    CRIMINAL    CASES. 

besides,  it  opens  the  door  to  a  mass  of  speculative  testimony 
whose  chief  mission  would  seem  to  be  the  diffusion  of  useless 
knowledge  and  the  confusion  of  the  human  understanding. 

"A  very  recent  and  decided  reaction  has  accordingly  been  taking 
place  against  this  attempt  to  formularize  the  sources  of  human 
intellection,  so  as  to  reduce  human  conduct  to  a  personal  equation 
born  alone  of  flesh  and  chemical  forces.  And  courts  have, 
through  sheer  weariness  and  despair  of  both  physical  and  meta- 
physical formulas,  as  keys  to  this  mental  riddle,  begun  to  adopt 
rules  of  kindred  evidence,  in  issues  of  insanity,  to  those  adopted 
in  other  matters  involving  presumptions  of  human  guilt.  Hence 
if  there  be  a  reasonable  doubt  of  a  defendant's  guilt,  the  jury 
must  acquit,  and  if,  by  a  parity  of  reason,  there  be  a  reasonable 
doubt  of  his  sanity,  they  must,  in  like  manner,  acquit."  * 

From  a  report  of  commissioners  in  lunacy  appointed  under  a 
special  commission  by  Governor  Dix,  the  evidence  in  favor  of  a 
confessed  murderer  was  to  the  effect  that,  through  the  influence 
of  his  epileptic  constitution,  and  the  grossest  practice  of  self- 
abuse,  his  brain  was  in  a  state  of  continuous  erethism.  His  mind 
has  not  enough  intensity  of  power  to  localize  itself  upon  any  one 
idea  or  to  perform  acts  of  self-introspection.  Disease  has  de- 
graded him  too  far  for  that.  He  has  an  unsteady  gait,  and  oth- 
erwise reveals  obscure  symptoms  of  that  form  of  paralysis  known 
as  locomotor  ataxy.  He  could  not,  therefore,  be  said  to  have  yet 
arrived  at  that  condition  of  diathetic  permanency  necessary  to 
constitute  complete  insanity  at  law.  He  simply  exhibited  a  form 
of  imbecility,  based  upon  an  epileptic  diathesis,  in  which  strong 
animal  propensities  might  bring  on  at  any  moment  a  convulsion, 
both  mental  as  well  as  bodily. 

Upon  this  statement  of  facts,  and  under  the  necessities  of  the 
legal  conditions  surrounding  the  prisoner,  the  governor  commuted 
his  sentence  to  imprisonment  for  life.  Re  Stauderman,  3  Abb. 
K  C.  191;  People  v.  Beno  Ville,  3  Abb.  N.  C.  195. 

*Note. — The  above  extract  is  from  an  able  article  by  John  Ordronaux,  M.  D., 
for  many  years  the  New  York  State  Commissioner  in  Lunacy,  and  Professor  of 
Medical  Jurisprudence  in  the  Law  School  at  Columbia  College.  The  article 
was  first  published  in  volume  1  Criminal  Law  Magazine,  p.  31,  under  the  title 
of  "The  Plea  of  Insanity  as  an  Answer  to  an  Indictment."  It  is  a  suggestive 
and  philosophic  review  of  an  obscure  and  confusing  topic,  and  will  well  merit 
perusal,  both  for  the  information  that  it  contains,  and  the  research  that  it  stim- 
ulates. 


EVIDENCE    OF    INSANITY.  665 

§411.  The  Guitean  Case  Examined. — The  most  exhaustive 
review  of  modern  criminal  law  fails  to  disclose  a  case  of  more 
absorbing  interest,  or  one  in  which  the  entire  technique  of  legal 
science  in  this  specalized  branch  has  been  more  effectively  dis- 
played, than  in  a  celebrated  trial  of  President  Garfield's  assassin. 
The  rulings  of  Jmhje  Cox  on  that  occasion  will  ever  be  regarded 
as  safe  expositions  of  the  modern  law  regulating  one  side  of  this 
controversy,  and  as  epigramatic  statements  of  fundamental  rules, 
that  underlie  and  support  the  entire  fabric  of  criminal  jurispru- 
dence. His  introductory  remark : — "No  one  can  feel  more  keenly 
than  I  do  the  grave  responsibility  of  my  duty;  and  I  feel  that  I 
can  only  discharge  it  by  a  close  adherence  to  the  law  as  it  has 
been  laid  down  by  its  highest  authorized  expounders," — will 
sufficiently  indicate  the  temper  with  which  he  approached  the 
task  of  charging  the  jury;  and  those  acquainted  with  his 
scholarly  attainments,  his  wide  research  in  criminal  law  and 
unrivaled  felicity  of  judicial  expression,  will  appreciate  and  com- 
mend the  contribution  he  has  made  to  this  branch  of  our  juris- 
prudence. The  following  extracts  are  elucidative  of  the  topic 
under  review,  and  are  taken  from  that  celebrated  charge. 

a.  Abuse  of  Insanity  as  a  Defense. — The  defense  of  insanity 
has  been  so  abused  as  to  be  brought  into  great  discredit.  It  has 
been  the  last  resort  in  cases  of  unquestionable  guilt,  and  has  been 
the  excuse  of  juries  for  acquittal,  when  their  own  and  the  public 
sympathy  have  been  with  the  accused,  and  especially  when  the 
provocation  to  homicide  has  excused  it  according  to  public  senti- 
ment but  not  according  to  law.  For  these  reasons,  it  is  viewed 
with  suspicion  and  disfavor,  whenever  public  sentiment  is  hostile 
to  the  accused.  Nevertheless,  if  insanity  be  established  to  the 
degree  that  has  been  already,  in  part,  and  will  hereafter  further 
be  explained,  it  is  a  perfect  defense  to  an  indictment  for  murder, 
and  must  be  allowed  full  weight. 

A  man  does  not  become  irresponsible  by  the  mere  fact  of  being 
partially  insane.  Such  a  man  docs  not  take  leave  of  his  passions 
by  becoming  insane,  and  may  retain  as  much  control  over  them 
as  in  health.  He  may  commit  offenses,  too,  with  which  his  in- 
firmity has  nothing  to  do.  He  may  be  sane  as  to  his  crime, 
understand  its  nature,  and  be  governed  by  the  same  motives  in 
regard  to  it  as  other  people;  while  on  some  other  subject,  having 
no  relation  to  it  whatever,  he  may  be  subject  to  some  delusion. 


<3CG  LAW    OF    EVIDENCE    IN    CKIMINAL    CASES. 

That  subtle  essence  which  we  call  "  mind "  defies,  of  course, 
ocular  inspection.  It  can  only  be  known  by  its  outward  mani- 
festations, and  they  are  found  in  the  language  and  conduct  of  the 
man.  By  these  his  thoughts  and  emotions  are  read,  and  accord- 
ing as  they  conform  to  the  practice  of  people  of  sound  mind,  who 
form  the  large  majority  of  mankind,  or  contrast  harshly  with  it, 
we  form  our  judgment  as  to  his  soundness  of  mind.  For  this 
reason  evidence  is  admissible  to  show  conduct  and  language  at 
different  times  and  on  different  occasions,  which  indicate  to  the 
general  mind  some  morbid  condition  of  the  intellectual  powers; 
and  the  more  extended  the  view  of  the  person's  life  the  safer  is 
the  judgment  formed  of  him.  Everything  relating  to  his  physical 
and  mental  history  is  relevant,  because  any  conclusion  as  to  his 
sanity  must  often  rest  upon  a  large  number  of  facts.  As  a  part 
of  the  language  and  conduct,  letters  spontaneously  written  afford 
one  of  the  best  indications  of  mental  condition. 

b.  Evidence  of  Insanity  in  Parents  and  Immediate  Rela- 
tives.— Evidence  as  to  insanity  in  the  parents  and  immediate 
relatives  is  a..so  pertinent.  It  is  never  allowed  to  infer  insanity  in 
the  accused  from  the  mere  fact  of  its  existence  in  the  ancestors. 
But  when  testimony  is  given  directly  tending  to  prove  insane 
conduct  on  the  part  of  the  accused,  this  kind  of  proof  is  admissible 
as  corroborative  of  the  other.  And  therefore  it  is  that  the 
defense  have  been  allowed  to  introduce  evidence  covering 
the  whole  life  of  the  accused,  and  reaching  to  his  family  anteced- 
ents. 

A  jury  is  not  warranted  in  inferring  that  a  man  is  insane  from 
the  mere  fact  of  his  committing  a  crime,  or  from  the  enormity  of 
the  crime,  or  from  the  mere  apparent  absence  of  adequate  motive 
for  it,  for  the  law  assumes  that  there  is  a  bad  motive — that  it  is 
prompted  by  malice — if  nothing  else  appears. 

c.  Legitimate  Conclusions  from  the  Evidence. — The  jury 
was  to  draw  its  conclusions  from  the  evidence.  Was  the  ordinary, 
permanent,  chronic  condition  of  his  mind  such,  in  consequence  of 
disease,  that  he  was  unable  to  understand  the  nature  of  his  actions 
or  to  distinguish  between  right  and  wrong  in  his  conduct?  Was 
he  subject  to  insane  delusions  that  destroyed  his  power  of  so  dis- 
tinguishing \  And  did  this  continue  down  to  and  embrace  the 
act  for  which  he  is  tried  \  If  so,  he  was  simply  an  irresponsible 
lunatic. 


EVIDENCE    OF    INSANITY.  667 

Or,  on  the  other  hand,  had  he  the  ordinary  intelligence  of  sane 
people,  so  that  he  could  distinguish  between  right  and  wrong,  as 
to  his  own  actions  ?  If  another  person  had  committed  the  assassi- 
nation, would  he  have  appreciated  the  wickedness  of  it?  If  he 
had  had  no  special  access  of  insanity  impelling  him  to  it,  as  he 
■claims  was  the  case,  would  he  have  understood  the  character  of 
such  an  act  and  its  wrongfulness  if  another  person  had  suggested 
it  to  him  ?  If  you  can  answer  these  questions  in  your  own  minds 
it  may  aid  you  towards  a  conclusion  as  to  the  normal  or  ordinary 
condition  of  the  prisoner's  mind  before  he  thought  of  this  act; 
and  if  you  are  satisfied  that  his  chronic  or  permanent  condition 
was  that  of  sanity,  at  least  so  far  that  he  knew  the  character  of 
his  own  actions,  and  whether  they  were  right  or  wrong,  and  was 
not  under  any  permanent  insane  delusions  which  destroyed  his 
power  of  discriminating  between  right  and  wrong  as  to  them, 
then  the  only  inquiry  remaining  is  whether  there  was  any  special 
insanity  connected  with  this  crime;  and  what  I  shall  further  say 
will  be  on  the  assumption  that  you  find  his  general  condition  to 
have  been  that  of  sanity  to  the  extent  I  have  mentioned. 

d.  The  McNaglitenCase  again  Reviewed.— As  a  part  of  the 
history  of  judicial  sentiment  on  this  subject,  and  by  way  of  illus- 
trating the  relation  between  insane  delusions  and  responsibility,  I 
will  refer  to  the  celebrated  case  in  English  history  already  freely 
commented  on  in  argument.  Nearly  40  yaars  ago  one  McNaghten 
was  tried  in  England  for  killing  a  Mr.  Drummond,  private  secre- 
tary of  Sir  Robert  Peel,  mistaking  him  for  the  premier  himself. 
He  was  acquitted  on  the  ground  of  insanity,  and  his  acquittal 
caused  so  much  excitement  that  the  house  of  lords  addressed  cer- 
tain questions  to  the  judges  of  the  superior  courts  of  England  in 
regard  to  the  law  of  insanity  in  certain  cases,  and  their  answers 
have  been  since  regarded  as  settling  the  law  on  this  subject  in 
England,  and,  with  some  qualification,  have  been  approved  in  the 
courts  of  this  country.  One  of  the  questions  was  :  "  If  a  person, 
under  an  insane  delusion  as  to  the  existing  facts,  commits  an 
offense  in  consequence  thereof,  is  he  thereby  excused  3 " 

To  which  it  was  answered,  that — 

"In  case  he  labors  under  a  partial  delusion  only,  and  is  not  in 
other  respects  insane,  he  must  be  considered  in  the  same  situation, 
as  to  responsibility,  as  if  the  facts  with  regard  to  which  the  delu- 
sion exists  were  real.     For  example,  if  under  the  influence  of  his 


66$  LAW  OF  EVIDENCE  IN  CRIMINAL  CASES. 

delusion  he  supposes  another  man  to  be  in  the  act  of  attempting 
his  life,  and  he  kills  that  man,  as  he  supposes,  in  self-defense,  he 
would  be  exempt  from  punishment.  If  his  delusion  was  that  the 
deceased  had  inflicted  a  serious  injury  to  his  character  and  for- 
tune, and  he  killed  him  in  revenge  for  such  supposed  injury,  he 
would  be  liable  to  punishment." 

This  was  because  it  was  excusable  to  kill  in  self-defense,  but 
not  to  kill  in  revenge  for  an  injury. 

This  has  been  in  part  recognized  as  law  in  this  country. 

Thus  Chief  Justice  Shaw,  of  Massachusetts,  in  the  case  of  Com. 
v.  Rogers,  7  ]\l"et.  500,  41  Am.  Dec.  458,  says: 

( .  Monomaniac  and  Insane  Delusions  Considered. — "Mono- 
mania may  operate  as  an  excuse  for  a  criminal  act,"  when  the 
"delusion  is  such  that  the  person  under  its  influence  has  a  real  and 
firm  belief  of  some  fact,not  true  in  itself,  but  which,  if  it  were  truer 
would  excuse  his  act;  as  when  the  belief  is  that  the  party  killed 
had  an  immediate  design  upon  his  life,  and  under  that  belief  the 
insane  man  kills  in  supposed  self-defense.  A  common  instance 
i>.  where  he  fully  believes  that  the  act  he  is  doing  is  done  by  the 
immediate  command  of  God,  and  he  acts  under  the  delusive  but 
sincere  belief  that  what  he  is  doing  is  by  the  command  of  a  supe- 
rior power,  which  supersedes  all  human  law7s  and  the  laws  of 
nature." 

But  the  insane  delusion,  according  to  all  testimony,  seems  to  be 
an  unreasoning  and  incorrigible  belief  in  the  existence  of  facts 
which  are  either  impossible  absolutely,  or,  at  least,  impossible 
under  the  circumstances  of  the  individual.  A  man,  with  no  rea- 
son for  it,  believes  that  another  is  attempting  his  life,  or  that  he 
himself  is  the  owner  of  untold  wealth,  or  that  he  has  invented 
something  which  will  revolutionize  the  world,  or  that  he  is  presi- 
dent of  the  United  States,  or  that  he  is  God  or  Christ,  or  that  he 
is  dead,  or  that  he  is  immortal,  or  that  he  has  a  glass  arm,  or  that 
he  is  pursued  by  enemies,  or  that  he  is  inspired  by  God  to  do 
something. 

In  most  cases,  as  I  understand  it,  the  fact  believed  is  something 
affecting  the  senses.  It  may  also  concern  the  relations  of  the 
party  with  others.  But  generally  the  delusion  centers  around 
himself,  his  cares,  sufferings,  rights  and  wrongs.  It  comes  and 
independently  of  the  exercise  of  will  and  reason,  like  the 
phantasms  of  dreams.     It  is,  in  fact,  the  waking  dream  of  the 


EVIDENCE    OF    INSANITY.  669 

insane,  in  which  facts  present  themselves  to  the  mind  as  real,  just 
as  objects  do  to  the  distempered  vision  in  delirium  tremens. 

The  insane  delusion  does  not  relate  to  mere  sentiments  or  theo- 
ries or  abstract  questions  in  law,  politics,  or  religion.  All  these 
are  the  subjects  of  opinions,  which  are  beliefs  founded  on  reason- 
ing and  reflection.  These  opinions  are  often  absurd  in  the 
extreme.  Men  believe  in  animal  magnetism,  spiritualism,  and 
other  like  matters,  to  a  degree  that  seems  unreason  itself,  to  most 
other  people.  And  there  is  no  absurdity  in  relation  to  religious, 
political,  and  social  questions  that  has  not  its  sincere  supporters. 

These  opinions  result  from  naturally  weak  or  ill-trained  reason- 
ing powers,  hasty  conclusions  from  insufficient  data,  ignorance  of 
men  and  things,  credulous  dispositions,  fraudulent  imposture,  and 
often  from  perverted  moral  sentiments.  But  still,  they  are  opin- 
ions, founded  upon  some  kind  of  evidence,  and  liable  to  be  changed 
by  better  external  evidence  of  sounder  reasoning.  But  they  are 
not  insane  delusions. 

f.  Unsworn  Declarations  of  the  Accused. — The  prisoner's 
unsworn  declarations,  since  the  assassination,  on  this  subject,  in 
his  own  favor,  are,  of  course,  not  evidence,  and  are  not  to  be  con- 
sidered by  you.  A  man's  language,  when  sincere,  may  be  evi- 
dence of  the  condition  of  his  mind  when  it  is  uttered,  but  it  is  not 
evidence  in  his  favor  of  the  facts  declared  by  him,  or  as  to  his 
previous  acts  or  condition.  He  can  never  manufacture  evidence 
in  this  way  in  his  own  exoneration. 

It  is  true  that  the  law  allows  a  prisoner  to  testify  in  his  own 
behalf,  and  thereby  makes  his  sworn  testimony  on  the  witness 
stand  legal  evidence,  to  be  received  and  considered  by  you,  but 
it  leaves  the  weight  of  that  evidence  to  be  determined  by  you 
also. 

I  need  hardly  to  say  to  you  that  no  verdict  could  safely  be  ren- 
dered upon  the  evidence  of  the  accused  party  only,  under  such 
circumstances.  If  it  were  recognized,  by  such  verdict,  that  a  man 
on  trial  for  his  life  could  secure  an  acquittal  by  simply  testifying 
himself,  that  he  had  committed  the  crime  charged  under  a  delu- 
sion, an  inspiration,  an  irresistible  impulse,  this  would  be  to  pro- 
claim in  universal  amnesty  to  criminals  in  the  past,  and  an 
unbounded  license  for  the  future,  and  the  courts  of  justice  might 
as  well  be  closed. 

It  must  be  perfectly  apparent  to  you  that  the  existence  of  such 


670  LAW    OF    EVIDENCE    IN    CRIMINAL    CASES. 

a  delusion  can  be  best  tested  by  the  language  and  conduct  of  the 
party  immediately  before  and  at  the  time  of  the  act. 

And  while  the  accused  party  cannot  make  evidence  for  himself 
by  his  subsequent  declarations,  on  the  other  hand,  he  may  make 
evidence  against  himself,  and,  when  those  declarations  amount  to 
admissions  against  himself,  they  are  evidence  to  be  considered  by 
a  jury. 

And  I  have  dwelt  upon  the  question  of  insane  delusion,  simply 
because  evidence  relating  to  that  is  evidence  touching  the  defend- 
ant's power,  or  want  of  power,  from  mental  disease,  to  distinguish 
between  right  and  wrong,  as  to  the  act  done  by  him,  which  is  the 
broad  question  for  you  to  determine,  and  because  that  is  the  kind 
of  evidence  on  this  question  which  is  relied  on  by  the  defense. 

g.  The  Test  of  Criminal  Responsibility. — But  the  only  safe 
rule  for  you  is  to  direct  your  reflections  to  the  one  question  which 
is  the  test  of  criminal  responsibility,  and  which  has  been  so  often 
repeated  to  you,  viz:  whether,  whatever  may  have  been  the  pris- 
oner's singularities  and  eccentricities,  he  possessed  the  mental 
capacity,  at  the  time  the  act  was  committed,  to  know  that  it  was 
wrong,  or  was  deprived  of  that  capacity  by  mental  disease. 

Hence  the  importance  of  viewing  the  moral  as  well  as  intellect- 
ual side  of  the  man,  in  the  effort  to  solve  the  question  of  sanity. 
That  evidence  on  this  subject  is  proper  was  held  by  the  supreme 
judicial  court  of  New  Hampshire  in  State  v.  Jones,  50  N.  H.  369,. 
9  Am.  Kep.  242,  Judge  Ladd  said: 

'"The  history  of  the  defendant  and  evidence  of  his  conduct  at 
various  times  during  a  period  of  many  years  before  the  act  for 
which  he  was  tried,  tending  to  showr  his  temper,  disposition,  and 
character,  were  admitted  against  his  objection.  It  was  for  the 
jury  to  say  whether  the  act  was  the  product  of  insanity,  or  the 
naturally  malignant  and  vicious  heart.  The  condition  of  the 
man's  mind,  whether  healthy  or  diseased,  was  the  very  matter  in 
issue.  This  must  be  determined  in  some  way  or  other  from 
externa]  manifestations  as  exhibited  in  his  conduct.  To  know 
whether  an  act  is  the  product  of  a  diseased  mind  it  is  important 
to  ascertain,  if  possible,  how  the  same  mind  acts  in  a  state  of 
health.  The  condition  of  sanity  or  insanity  shown  to  exist  at  one 
time  is  presumed  to  continue.  For  these  reasons  and  others, 
which  I  have  not  thought  it  necessary  to  enlarge  upon,  it  would 
seem  that  evidence  to  show  defendant's  mental  and  moral  charac- 


EVIDENCE    OF    INSANITY.  671 

ter  and  condition  for  many  years  before  the  act,  was  properly 
received." 

The  London  Lancet  of  December  12.  1881,  a  periodical  well 
known  to  the  medical  profession  of  both  England  and  America 
commenting  upon  insanity  as  a  defensive  plea  refuse.-  to  admit 
the  theory  of  moral  insanity  and  denies  it  the  least  professional 
countenance.  The  writer  says:  "We  fancied  the  'plea  of  insan- 
ity' had  been  reduced  to  absurdity  in  the  ridiculous  attempt  made 
to  show  that  Lefroy  was  insane;  but  it  seems  that  the  apotheosis 
of  stupidity  is  to  take  place  in  America.  It  is  high  time  the  non- 
sense recently  talked  and  written  about  'irresponsibility'  should 
be  exposed  and  ended.  If  the  supreme  triumph  of  medical 
psychology  is  to  be  sought  in  the  attempt  to  prove  that  men  are 
mere  machines,  and  that  the  wrong  they  do  is  not  their  doing,  but 
the  outcome  of  disease,  the  sooner  this  branch  of  science  is  dis- 
countenanced by  the  common  sense  of  the  profession  the  better 
will  it  be  for  the  credit  and  influence  of  our  cloth.  If  a  man  is 
not  acting  under  a  recognizable  and  formulated  delirium  when  he 
commits  a  crime,  he  is  clearly  responsible,  and  ought  to  be  so  held 
unless  he  is  unquestionably,  and  on  grounds  other  than  those  aris- 
ing out  of  or  associated  with  his  crime,  shown  to  be  insane.  The 
mistake  into  which  'experts'  and  those  who  follow  their  leadcom- 
monlv  fall  is  to  confound  the  evidences  of  a  neurotic  constitution 
with  the  symptoms  of  mental  disease.  The  inheritor  of  an  organ- 
ism which  predisposes  to  insanity  is  not  necessarily  insane.  Lefroy 
was  not  insane,  and  Chateau  is  not  insane.  The  only  insanity 
accruing  to  the  latter  case  is  that  which  those  who  support  the 
plea  may  themselves  import  into  it.  The  position  of  matters  in 
regard  to  this  question  is  becoming  one  of  exceeding  gravity,  and 
it  will  soon  need  to  be  very  seriously  discus>e<i."' 

h.  Theory  of  Irresistible  Impulse  Examinee].  — "Irre- 
sistible impulse,"  to  constitute  a  defense,  must  be  that  of  a 
person  otherwise  insane,  we  proceed  to  consider  the  authorities 
'that  establish  such  impulse,  under  such  conditions,  as  a  defense. 
In  doin<r  so  it  must  be,  at  the  outset,  conceded  that,  by  the  Eng- 
lish courts,  this  defense,  as  here  stated,  is  rejected.  No  person, 
however  insane,  can,  by  the  law  as  now  (1882)  expounded  by 
these  courts,  be  acquitted  of  a  crime  if  it  appear  to  the  satisfac- 
tion of  the  jury  that  he  knew  the  nature  and  quality  of  the  act  he 
was  doino-,  or,  if  he  did  not  know  it,  if  he  knew  that  the  act  was 


672  LAW    OF    EVIDENCE    IN    CRIMINAL    CASES. 

wrong.  But  if,  as  may  readily  be  shown,  it  is  demonstrable  that 
there  sometimes  is,  among  insane  persons,  an  "irresistible  impulse" 
to  an  act  co-existing  with  a  knowledge  that  it  was  wrong  then 
comes  the  question  whether  lunatics  of  this  stamp  are  legally 
punishable  for  such  acts.  That  they  are  not,  the  tendency  of 
American  authority  is  to  maintain.  And  even  in  England  we  find 
Mr.  Stephen,  in  his  work  on  English  Criminal  Law  (London, 
1S63)  p.  91, — a  work  as  remarkable  for  philosophical  symmetry 
as  for  legal  accuracy, — stating  (1863)  the  questions  to  be,  "in 
popular  language,  Was  it  his  act?  Could  he  help  it?  Did  he 
know  it  was  wrong  J"  He  goes  on  further  to  say  :  "It  would  be 
absurd  to  deny  the  possibility  that  such  (irresistible)  impulses 
may  occur,  or  the  fact  that  they  have  occurred,  and  have  been 
acted  on.  Instances  are  also  given  in  which  the  impulse  was  felt, 
and  was  resisted.  The  only  question  which  the  existence  of  such 
impulses  can  raise  in  the  administration  of  criminal  justice,  is 
whether  the  particular  impulse  in  question  was  irresistible  as  well 
as  unresisted.  If  it  were  irresistible  the  person  accused  is  entitled 
to  be  acquitted,  because  the  act  was  not  voluntary,  and  was  not, 
properly,  his  act.  If  the  impulse  was  irresistible,  the  fact  that  it 
proceeded  from  disease  is  no  excuse  at  all."  See  Peoj)le  v.  Mc- 
Farland,  8  Abb.  Pr.  ISr.  S.  57.  In  Sir  J.  Stephen's  testimony 
before  the  English  homicide  committee  the  same  view  is  taken. 
Whart.  Am.  Crim.  L.  (8th  ed.)  §  15. 

i.  Review  of  the  State  Decisions. — In  Illinois,  in  1863,  it 
was  declared  by  the  supreme  court  that  a  safe  and  reasonable  test 
would  be,  that  whenever  it  should  appear  from  the  evidence  that 
at  the  time  of  doing  the  act  charged,  the  prisoner  was  not  of 
sound  mind,  but  affected  with  insanity,  and  such  affection  was  the 
efficient  cause  of  the  act,  and  that  he  would  not  have  done  the  act 
but  for  that  affection,  he  should  be  acquitted.  But  this  un- 
soundness of  mind,  or  affection  of  insanity,  must  be  of  such  a  de- 
gree as  to  create  an  uncontrollable  impulse  to  do  the  act  charged 
by  overriding  the  reason  and  judgment,  and  obliterating  the  sense 
of  right  and  wrong  as  to  the  particular  act  done,  and  depriving 
the  accused  of  the  power  of  choosing  between  them.  If  it  be 
shown  the  act  was  the  consequence  of  an  insane  delusion,  and 
caused  by  it.  and  by  nothing  else,  justice  and  humanity  alike  de- 
mand an  acquittal.  Sound  mind  is  presumed  if  the  accused  is 
neither  an  idi<  >t,  a  lunatic,  nor  "affected  with  insanity."     If  he  be 


EVIDENCE   OF    INSANITY.  673 

insane,  sound  mind  is  wanting,  and  the  crime  is  not  established; 
therefore,  the  burden  is  on  the  state  to  establish  sanity,  and  not 
upon  the  prisoner  to  show  insanity.  See  Fisher  v.  People,  23  111. 
283;  JETopps  v.  People,  31  111.  394,  83  Am.  Dec.  231.  So,  also, 
Judge  Brewster,  speaking  for  the  judges  of  the  Philadelphia 
common  pleas,  said,  in  1868 :  "The  true  test  in  all  these  cases 
lies  in  the  word  'power.'  Has  the  defendant  in  a  criminal  case 
the  power  to  distinguish  right  and  wrong,  and  the  power  to  ad- 
here to  the  right  and  avoid  the  wrong  ?"  Corn.  v.  Haskell,  2 
Brewst.  491. 

In  Indiana  a  similar  view  was  accepted  in  1869.  Stevens  v. 
■State,  31  Ind.  485,  99  Am.  Dec.  634. 

In  Ohio  insane  irresistible  impulse  is  regarded  as  a  defense 
(  Blackburn  v.  Statt ,  23  Ohio  St.  146)  and  such  is  the  view  in  Min- 
nesota and  Kentucky.  Smith  v.  Com.  1  Duv.  224.  In  Iowa, 
in  1868,  the  same  point  was  affirmed  by  the  supreme  court,  Chief 
Justice  Dillon  delivering  the  opinion.  The  capacity  to  distinguish 
right  and  wrong,  it  was  held,  is  not  in  all  cases  a  safe  test  of  crim- 
inal responsibility.  If  a  person  commit  a  homicide,  knowing  it 
to  be  wrong,  but  driven  to  it  by  an  uncontrollable  and  irresistible 
impulse,  arising  not  from  natural  passion,  but  from  an  insane 
condition  of  the  mind,  he  is  not  criminally  responsible.  State  v. 
F(  lt<  r,  25  Iowa,  67.  See  also  People  v.  McFarland,  8  Abb.  Pr. 
N.  S.  57.  To  the  same  effect  is  a  decision  of  the  Supreme  Court 
of  the  United  States  in  1872.  Mutual  L.  Ins.  Co.  v.  Terry,  82 
U.  S.  15  Wall.  580,  21  L.  ed.  236.  See  also  Blackburn  v.  State, 
23  Ohio  St.  165;  Brown  v.  Corn.  78  Pa.  122;  and  other  cases  in 
Whart.  Am.  Oriin.  L.  (8th  ed.)  145. 

Thus,  in  P<<>j>1(  v.  Coleman,  1  N.  Y.  Crim.  Rep.  3,  Judge 
Davis  charged  the  jury  as  follows:  "In  this  state  the  tesl  of  re- 
sponsibility for  criminal  acts,  where  insanity  is  asserted,  is  the 
capacity  of  the  accused  to  distinguish  between  right  and  wrong 
at  the  time  and  with  respect  to  the  act  which  is  the  subject  of 
inquiry."  He  further  said  that  the  question  for  the  jury  to  de 
termine  is  "whether  at  the  time  of  doing  the  act  the  prisoner 
knew  what  she  was  doing  and  that  she  was  doing  a  wrong;  or,  in 
other  words,  did  she  know  that  she  was  shooting  at  the  deceased, 
and  that  such  shooting  was  a  wrongful  act?"  The  judge  further 
?aid:  "No  imaginary  inspiration  to  do  a  personal  or  private 
vvron"-,  under  a  delusion,  a  belief,  that  some  great  public  benefit 
&  43 


674  LAW    OF   EVIDENCE   IN    CRIMINAL   CASES. 

will  flow  from  it,  where  the  nature  of  the  act  done  and  its  proba- 
ble consequences,  and  that  it  is  in  itself  wrong,  are  known  to  the 
actor,  can  amount  to  that  insanity  which  in  law  disarms  the  act  of 
criminality.  Under  such  notions  of  legal  insanity,  life,  property 
and  rights,  both  public  and  private,  would  be  altogether  insecure, 
and  every  man  who,  by  brooding  over  his  wrongs,  real  or  imagin- 
ary, shall  work  himself  up  to  an  irresistible  impulse  to  avenge 
himself,  or  his  friend  or  his  party,  can  with  impunity  become  a 
a  self-elected  judge,  jury,  aud  executioner  in  his  own  case,  for  the 
redress  of  his  own  injuries  or  the  imaginary  wrongs  of  his  friends, 
his  party,  or  his  country.  But,  happily,  that  is  not  the  law,  and 
whenever  such  ideas  of  insanity  are  applied  to  a  given  case  as  the 
law  (as  too  often  they  have  been)  crime  escapes  punishment,  not 
through  the  legal  insanity  of  the  accused,  but  through  the  emo- 
tional insanity  of  courts  and  juries." 

To  the  same  general  effect  may  be  cited  Reg.  v.  Oxford,  9  Car. 
&  P.  525;  Rex  v.  Burrow,  1  Lew.  C.  C.  238;  Reg.  v.  Goode,  7 
Ad.  &  El.  536,  67  Hans.  Pari.  Deb.  728;  Bowler's  Case,  67  Hans. 
Pari.  Deb.  480;  Rex  v.  Hadfield,  67  Hans.  Pari.  Deb.  480,  27 
How.  St.  Tr.  1282;  Reg.  v.  Barton,  3  Cox,  C.  C.  275;  Reg.  v.  Of- 
ford,  5  Car.  &  P.  168;  Reg.  v.  Higginson,  1  Car.  &  K.  129;  Reg. 
v.  Stokes,  3  Car.  &  K.  185;  Reg.  v.  Layton,  4  Cox,  C.  C.  149; 
Reg.  v.  Vaughan,  1  Cox,  C.  C.  80;  United  States  v.  Shults,  6 
McLean,  121;  Com.  v.  Rogers,  7  Met.  500,  41  Am.  Dec.  458; 
State  v.  Richard,  39  Conn.  591;  Freeman  v.  People,  4  Denio,  9, 
47  Am.  Dec.  216;  Flanagan  v.  People,  52  K  Y.  467,  11  Am. 
Rep.  731;  People  v.  Sprague,  2  Park.  Crim.  Rep.  43;  State  v. 
Spencer,  21  K  J.  L.  196;  Com.  v.  Hosier,  4  Pa.  264;  Com.  v. 
Farkin,  2  Pars.  Sel.  Eq.  Cas.  439;  Brown  v.  Com.  78  Pa.  122; 
State  v.  Gardiner,  Wright,  (Ohio)  392;  Vance  v.  Com.  2  Ya. 
Cas.  132;  McAllister  v.  State,  17  Ala.  434,  52  Am.  Dec.  180; 
Dove  v.  State,  3  Heisk.  348;  Stuart  v.  People,  1  Baxt.  178.  Com- 
menting upon  the  Guiteau  Case,  10  Fed.  Rep.  194,  Mr.  Justice 
Somerville  of  the  Alabama  supreme  court  says : 

j.  Comments  of  Judge  Somerville. — "The  Guiteau  case  was 
tried  before  the  United  States  district  court  for  the  District  of 
Columbia,  before  Mr.  Justice  Cox,  whose  charge  to  the  jury  is 
replete  with  interest  and  learning.  While  he  adopted  the  right 
and  wrong  test  of  insanity,  he  yet  recognized  the  principle  that 
if  the  accused  in  fact  entertained  an  insane  delusion,  which  was 


EVIDENCE    OF    INSANITY.  675 

the  product  of  the  disease  of  insanity,  and  not  of  a  malicious 
heart  and  vicious  nature,  and  acted  solely  under  the  influence  of 
such  delusion,  he  could  not  be  charged  with  entertaining  a 
criminal  intent.  An  insane  delusion  was  defined  to  be  "an  un- 
reasonable and  incorrigible  belief  in  the  existence  of  facts  which 
are  either  impossible  absolutely,  or  impossible  under  the  circum- 
stances of  the  individual;"  and  no  doubt  the  case  was  largely  de- 
termined by  the  application  of  this  definition  by  the  jury.  It 
must  ever  be  a  mere  matter  of  speculation  what  influence  may 
have  been  exerted  upon  them  by  the  high  personal  and  political 
significance  of  the  deceased,  as  the  chief  magistrate  of  the  govern- 
ment or  other  peculiar  surroundings  of  a  partisan  nature.  The 
case  in  its  facts  is  so  peculiar  as  scarcely  to  serve  the  purpose  of  a 
useful  precedent  in  the  future."  Parsons  v.  State,  61  Ala.  577, 
60  Am.  Rep.  193. 

§  412.  Views  of  Mr.  Robert  Desty.— "  The  true  test  of  re- 
sponsibility lies  in  the  word 'power' — has  the  defendant  the 
power  to  distinguish  right  from  wrong,  and  the  power  to  adhere 
to  the  right  and  avoid  the  wrong,  and  the  power  to  govern  the 
mind,  body,  and  estate  ?  And  it  is  sufficient  if  power  to  do  so  is 
shown  to  have  existed  in  reference  to  the  particular  act.  If  he 
was  under  such  defect  of  reason  from  disease  of  mind  as  not  to 
know  the  quality  of  the  act  he  was  doing,  or  was  under  such  delu- 
sion as  not  to  understand  the  nature  of  his  act,  or  had  not  suffi- 
cient memory  or  reason  to  know  he  was  doing  wrong,  then  he 
was  not  responsible;  but  if  he  knew  what  he  was  doing,  and  that 
the  act  was  forbidden  by  law,  and  took  precautions  to  accomplish 
his  purpose,  and  had  power  of  mind  enough  to  know  what  he 
was  doing  at  the  time,  then  1  onsible;  for  it  is  conscious 

knowledge  coupled  with  the  act  which  constitutes  crime."  See 
Desty,  Am.  Crim.  L.  p.  62,  £  23^,  and  cases  cited;  GuiU  au's  Cast . 
10  Fed.  Eep.  161. 

§413.  Views  of  the  Florida  Supreme  Court.— The  relations 
sustained  by  the  supreme  court  of  Florida  to  this  interesting 
topic,  are  best  evidenced  by  the  decision  in  the  case  of  ffodgi  v. 
State,  26  Fla.  11,  which  was  decided  in  June  L890,  with  the  con- 
currence of  the  full  bench.  Upon  a  careful  analysis,  it  appears 
that  where  the  defense  of  insanity  is  relied  upon  as  an  extenua- 
tion or  excuse  for  crime,  and  evidence  is  introduced  which  tends 
to  overthrow  the  presumption  of  sanity,  if  upon  the  whole  evi- 


676  LAW    OF    EVIDENCE    IN    CRIMINAL    CASES. 

dence  the  jury  entertained  a  reasonable  doubt  of  his  sanity,  they 
must  acquit,  regardless  of  whether  it  be  adduced  by  the  prosecu- 
tion or  defendant,  and  that  the  accused  is  not  required  to  estab- 
lish his  insanity  beyond  a  reasonable  doubt;  and  in  this  we  think 
they  are  correct,  and  that  the  charge  of  the  trial  judge,  that  the 
accused  was  required  to  prove  his  insanity  beyond  a  reasonable 
doubt,  was  erroneous.  The  more  humane  and  advanced  rule  on 
this  subject  is  that  if  the  jury,  upon  a  consideration  of  the  entire 
evidence,  have  a  reasonable  doubt  as  to  the  insanity  of  a  party 
charged  with  crime  at  the  time  of  committing  it,  it  is  their  duty 
to  give  him  the  benefit  of  such  doubt,  and  acquit.  But  the  jury 
are  to  act  upon  a  reasonable  doubt  of  sanity  in  such  cases,  and  are 
not  to  acquit  upon  a  fanciful  ground.  Armstrong  v.  State,  27 
Fla.  366. 

§  414.  Moral  Insanity  as  an  Excuse  for  Crime— There  are 
other  species  of  insanity  than  those  referable  alone  to  diseases  of 
the  mind,  or  disorders  of  the  mental  powers;  that  there  is  a 
species  of  insanity  denominated  by  medico-legal  writers  as  moral 
insanity,  and  sometimes  a  lesion  of  the  will;  and  that  such  species 
of  insanity  may  co-exist  with  ample  mental  power  and  perception 
to  distinguish  right  from  wrong,  and  to  understand  fully  the 
nature  and  consequences  of  criminal  acts;  and  yet  the  party  may 
be  impelled  to  the  doing  of  an  act,  wrong  in  itself,  by  a  morbid, 
irresistihle  impulse.  This  species  of  insanity,  it  is  true,  is  recog- 
nized by  many  able  writers  upon  medical  jurisprudence;  and  by 
some  few  courts  it  has  had  a  partial  or  qualified  recognition.  But, 
by  the  great  majority  of  courts  and  jurists,  it  is,  as  an  independ- 
ent state  or  condition,  declared  to  have  no  place  in  the  law.  All 
crime  is  committed  from  bad  motives  or  impulses,  and  it  is  the 
great  object  of  the  law  to  compel  people  to  resist  and  restrain 
their  vicious  criminal  impulses;  the  law  giving  no  impunity  to 
their  indulgence.  Taylor,  an  author  of  high  repute,  in  vol.  2  of 
his  work  on  Medical  Jurisprudence  (edition  of  1873),  at  page  470, 
says,  '"The  intellectual  disturbance  may  be  sometimes  difficult  of 
detection;  but  in  every  case  of  true  insanity  it  is  more  or  less 
present,  and  it  would  be  a  highly  dangerous  practice  to  pronounce 
a  person  insane,  when  some  evidence  of  its  existence  was  not 
forthcoming.  The  law  does  not  recognize  moral  insanity  as  an 
independent  state;  hence,  however  perverted  the  affections,  moral 
feelings,  or  sentiments  may  be,  a  medical  jurist  must  always  look 


EVIDENCE    OF    INSANITY.  677 


s?> 


for  some  indications  of  disturbed  reason.  Medically  speaking 
there  are,  according  to  Dr.  Prichard,  two  forms  of  insanity,  moral 
and  intellectual;  but  in  law  there  is  only  one — that  which  affects 
the  mind.  Moral  insanity  is  not  admitted  as  a  bar  to  responsi- 
bility for  civil  or  criminal  acts,  except  in  so  far  as  it  may  be 
accompanied  by  intellectual  disturbance."  And  in  speaking  of 
moral  or  emotional  insanity,  as  a  defense  for  the  commission  of 
crime,  the  late  Mr.  Justice  Curtis,  in  United  States  v.  M c Glue, 
1  Curt.  C.  C.  1,  well  said  :  "  It  is  an  important  as  well  as  a  deeply 
interesting  study,  and  it  rinds  its  place  in  that  science  which  min- 
isters to  diseases  of  the  mind.  .  .  .  But  the  law  is  not  a 
medical  nor  a  metaphysical  science.  Its  search  is  after  those 
practical  rules  which  may  be  administered  without  inhumanity 
for  the  security  of  civil  society  by  protecting  it  from  crime,  and 
therefore  it  inquires  not  into  the  peculiar  constitution  of  mind  of 
the  accused,  or  what  weakness  or  even  disorders  he  was  afflicted 
with,  but  solely  whether  he  was  capable  of  having,  and  did  have, 
a  criminal  intent.  If  he  had  such  intent  the  law  punishes  him, 
but  if  not,  it  holds  him  dispunishable." 

Moral  insanity  as  an  excuse  for  crime  is  no  longer  recognized 
as  a  defense.  Guiteau's  Case,  10  Fed.  Rep.  161;  Boswell  v.  State, 
63  Ala.  307,  35  Am.  Rep.  20;  People  v.  Kerrigan,  73  Cal.  222; 
State  v.  Potts,  100  N.  C.  457. 

But  on  a  subject  so  intangible  and  of  which  so  little  can  be 
clearly  known  we  would  not,  in  the  spirit  of  dogmatism,  under- 
take to  say  that  there  was  no  moral  as  distinguished  from  intel- 
lectual insanity. 

§415.  Summary  of  the  Conclusions  Reached. — Without 
pushing  the  subject  into  unprofitable,  refinements  we  may  sum- 
marize the  conclusions  of  legal  authority  by  saying  that  the  sole 
test  of  criminal  responsibility  is  not  the  knowledge  of  right  and 
wrong  only;  there  must  be  will  power  to  apply  the  knowledge  and 
act  accordingly.  Reg.  v.  McNaghten,  10  Clark  &  F.  200;  Reg. 
v.  Oxford,  9  Car.  &  P.  532;  Reg.  v.  Law,  2  Post.  &  F.  836;  Reg. 
v.  Ojf'ord,  5  Car.  &  P.  168;  Rex  v.  Bellingham,  cited  in  1  Russell, 
Crimes  (8th  Am.  ed.)  *11;  Beg.  v.  Pearce,  9  Car.  &  P.  637;  Peo- 
ple v.  Kleim,  1  Ed  in.  Sel.  Cas.  14;  Com.  v.  Rogers,  7  Met.  500, 
41  Am.  Dec.  458;  1  Bennett  &  Heard  Lead.  Crim.  Cas.  (2d  ed.) 
87;  Freeman  v.  People,  1  Denio,  9,  -17  Am.  Dec.  216;  Cole's 
Case,  7  Abb.  Pr.  N.  S.  321;  People  v.  McFarland,  8  Abb.  Pr. 


GTS  LAW    OF    EVIDENCE    IN    CRIMINAL    CASES. 

K  S.  57;  People  v.  McCwm,  16  N.  Y.  58,  69  Am.  Dec.  642; 
WUlis  v.  Peqpfe,  32  N.  Y.  715;  Com.  v.  Mosler,  4  Pa.  267;  i?^. 
v.  Bleasdale,  2  Car.  &  K.  765;  State  v.  Windsor,  5  Harr.  (Del.) 
512;  xSco^  v.  Com.  4  Met.  (Ky.)  227,  83  Am.  Dec.  461;  Smith  v. 
Com.  1  Duv.  224;  Hopps  v.  $tafe,  31  111.  385, 83  Am.  Dec.  231;  Com. 
v.  /-W'^A  (Pa.)  6  Am.  L.Reg. 400;  Com.  v.S/mrlock,  14  Phila.  Le- 
gal Int.  33;  Com.  v.  #m^A,  15  Phila.  Legal  Int.  33;  Pouts  v.  State,  4 
G.  Greene,  500;  Bilman's  Case,  cited  in  1  Whart.  Am.  Crim.  L.  §  30; 
People  v.  P*w<?3  2  Barb.  566;  £feu0M  v.  State,  31  Ind.  485,  99 
Am.  Dec.  634;  Graham  v.  Cow.  16  B.  Mon.  591;  Flanagan  v. 
P«3?fo,  52  N.  Y.  467,  17  Am.  Rep.  731;  1  Hale,  P.  C.  30;  4  Bl. 
Com.  21;  3  Coke,  Inst.  47;  Ray,  Insanity;  Wharton  &  S.  Medical 
Jurisprudence;  Dean,  Medical  Jurisprudence;  Taylor,  Medical 
Jurisprudence;  Browne,  Insanity. 

In  New  York  it  seems  that  the  sole  test  of  insanity  when  inter- 
posed as  a  criminal  defense  in  a  criminal  prosecution,  is  whether 
the  defendant  has  knowledge  of  the  nature  and  quality  of  the  act 
in  question,  and  whether  it  is  right  or  wrong.  Peg.  v.  McNagh- 
terfs  Case,  supra;  United  States  v.  McGlue,  1  Curt.  C.  C.  1; 
Loeffner  v.  State,  10  Ohio  St.  598;  State  v.  Klinger,  43  Mo.  127; 
BrinMey  v.  State,  58  G-a.  298;  Freeman  v.  People,  and  People  v. 
Pine,  supra;  People  v.  Montgomery.  13  Abb.  Pr.  1ST.  S.  214; 
Willis  v.  People,  and  Flanagan  v.  People,  supra;  Wagner  v. 
People,  4  Abb.  App.  Dec.  511. 

"It  is  now  settled,  that  where  the  fact  of  lunacy  is  proved  gen- 
erally, a  lucid  interval  shall  not  be  presumed  in  support  of  a  par- 
ticular transaction,  although  in  its  character  perfectly  rational. 
To  sustain  the  validity  of  any  such  transaction,  the  sanity  and  com- 
petence of  the  party  at  the  time  must  clearly  and  positively 
appear;  the  evidence  must  go  to  prove  not  merely  a  cessation  of 
the  violent  symptoms  of  the  disorder,  but  a  restoration  of  the 
faculties  of  the  mind  sufficient  to  insure  the  exercise  of  a  sound 
discretion.  It  is  enough  to  show,  as  Lord  Nottingham  observed, 
that  the  act  is  actus  sapienti  conveniens,  for  that  may  happen 
many  ways;  it  must  be  proved  to  be  actus  sapientis,  and  to  have 
pr<  iceeded  from  judgment  and  deliberation."  Mathews,  Presump- 
tive Evidence,  19. 

§  416.  Review  of  the  Subject  by  the  Nevada  Supreme 
Court. — The  supreme  court  of  Nevada  in  a  very  recent  case 
(Slate   v.  Lt  wis,  2(>  Nev.  333)  gives  an  extended  review  of  this 


EVIDENCE    OF    INSANITY.  G79 

entire  topic,  saying  inter  alia,  "if  any  evidence  is  introduced 
tending  to  prove  that  defendant  is  insane  the  state  is  bound  to 
prove  and  establish  his  sanity  like  all  other  elements  of  a  crime, 
beyond  a  reasonable  doubt."     Continuing  the  court  says: 

"It  is  earnestly  and  ably  contended  by  learned  judges,  whose 
opinions  have  ever  been  entitled  to  great  respect  and  considera- 
tion, that  the  burden  of  establishing  the  killing  and  the  malicious 
intent  is  always  upon  the  prosecution;  that  there  cannot,  logically, 
be  any  separation  of  the  ingredients  of  the  crime  so  as  to  require 
a  part  thereof,  only,  to  be  established  by  the  state,  and  the  balance 
to  be  established  by  the  defendant;  that  the  idea  that  the  burden 
of  proof  ever  shifts  in  a  criminal  case  is  unphilosophical  and  at 
war  with  fundamental  principles  of  criminal  law;  that  the  rule 
established  by  a  majority  of  the  decided  cases  strips  the  defendant 
of  the  presumption  of  innocence  which  the  law  has  given  him  as  a 
shield  throughout  the  entire  proceedings,  until  the  verdict  of  the 
jury  establishes  the  fact,  beyond  a  reasonable  doubt,  that  he  not 
only  committed  the  act,  but  that  he  did  so  witli  malicious  intent. 

"We  are  of  opinion  that  the  weight  of  reason,  as  well  as  the  pre- 
ponderance of  the  authorities,  is  opposed  to  these  views.  It  is 
undoubtedly  true  thai  it  is  incumbent  upon  the  prosecution  to  prove 
every  fact  that  is  material,  essential,  and  necessary  to  constitute  the 
crime  of  which  the  defendant  is  accused,  which,  of  course,  includes 
the  sanity  of  the  defendant;  but  is  it  not  equally  true  that  the 
burden  of  proving  his  sanity  is  fully  met  by  the  presumption  of 
law  'that  every  person  is  of  sound  mind  until  the  contrary 
appears.'  If  this  be  true,  then  it  is  not  a  harsh,  unphilosophical 
or  inhuman  rule  that  requires  a  defendant,  who  seeks  to  avoid 
the  punishment  which  the  law  imposes  upon  him  for  the  crime 
he  has  committed,  by  means  of  the  defense  of  insanity,  to  rebut 
the  presumption  of  sanity  by  proof  that  is  satisfactory  to  the  jury. 
Insanity  being  in  its  nature  an  affirmative  defense,  does  it  not 
necessarily  follow  that,  where  the  insanity  of  the  defendant  is 
established  by  the  presumption  of  law,  or  by  the  testimony  of 
witnesses,  or  by  both,  the  defendant,  in  order  to  overcome  this 
presumption  or  testimony,  must  establish  his  insanity  by  a.  prepon- 
derance of  the  evidence? 

"The  presumption  of  the  law  in  favor  of  innocence  is  essential, 
not  only  to  the  safety  of  the  individual  accused  of  crime,  hut  is 
absolutely  necessary  for  the  protection   and   security  of  society, 


680  LAW    OF    EVIDENCE    IN    CRIMINAL    CASES. 

and  it  is  universally  recognized  in  the  trial  of  all  criminal  cases. 
But  there  are  other  legal  and  well  recognized  presumptions,  sanc- 
tioned by  law  and  approved  by  the  wisdom  of  ages,  which  are 
equally  as  important  and  as  indispensable  to  individuals,  and  to 
the  well-being,  safety  and  protection  of  society,  and  equally  as 
necessary  for  the  proper  administration  of  justice  in  the  trial  of 
criminal  cases.  Within  this  category  prominently  stands  the  pre- 
sumption of  sanity.  '  Every  man  is  presumed  to  be  sane.'  Is 
not  this  presumption  as  necessary  and  as  universal  in  its  applica- 
tion as  the  presumption  of  innocence?  Ought  not  proof  be 
required  to  rebut  the  other?     State  v.  Lewis,  20  Nev.  333. 

"Upon  the  question  of  sanity  at  the  time  of  committing  an 
offense,  the  acts,  conduct  and  habits  of  the  prisoner  at  a  subse- 
quent time  may  be  competent  as  evidence  in  his  favor.  But  they 
are  not  admissible  as  of  course.  When  admissible  at  all  it  is  upon 
the  ground  either  that  they  are  so  connected  with  or  correspond 
to  evidence  of  disordered  or  weakened  mental  condition  preced- 
ing the  time  of  the  offense  as  to  strengthen  then  the  inference  of 
continuance,  and  carry  it  by  the  time  to  which  the  injury  relates, 
and  thus  establish  its  existence  at  that  time;  or  else  they  are  of 
such  a  character  as  of  themselves  to  indicate  unsoundness  to  such 
a  degree  or  of  so  permanent  a  nature  as  to  have  required  a  longer 
period  than  the  interval  for  its  production  or  development." 
Conn.  v.  Pomeroy,  117  Mass.  148;  State  v.  Lewis,  supra. 

The  inference  to  be  drawn  from  the  discussion  of  the  cases 
would  seem  to  be  in  favor  of  the  more  reasonable  doctrine  last 
considered.  It  has  been  a  question  frequently  and  gravely  argued 
both  by  theoretical  writers  and  in  forensic  discussion,  and  the  agita- 
tion is  by  no  means  allayed  nor  can  the  principles  that  infest  it  be 
regarded  as  even  settled. 


CHAPTER  XLIX. 

•      EVIDENCE  OF  ALIBI. 

§  417.  Term  Defined. 

418.  Essentials  of  Alibi  Evidence. 

419.  What  the  Proof  Involves. 

420.  Credibility  of — how  Strengthened. 

421.  Want  of  Harmony  in  the  Decisions. 

422.  Burden  of  Proving  with  the  Defendant. 

423.  Prejudicial  Theories  Regarding  this  Defense. 

424.  Shifting  Nature  of  the  Burden  of  Proof. 

425.  Not  Bound  to  Prove  beyond  Reasonable  Doubt. 

426.  Views  of  Mr.  Justice  Best. 

427.  The  General  Rule. 

428.  Miscellaneous  Decisions. 

§  417.  Term  Defined. — Alibi  is  a  Latin  word,  signifying;  else- 
where, and,  in  law,  means  a  defense  interposed  by  the  defendant,, 
by  which  he  proves  that,  at  the  time  of  the  commission  of  the 
offense,  he  was  at  some  other  place  than  that  where  it  was  com- 
mitted. 

§418.  Essentials  of  Alibi  Evidence. — It  is  obviously  essen- 
tial to  the  satisfactory  proof  of  an  alibi  that  it  should  cover  the 
whole  of  the  time  of  the  transaction  in  question,  so  as  to  render  it 
impossible  that  the  prisoner  could  have  committed  the  act;  it  is 
not  enough  that  it  renders  his  guilt  improbable  merely.  Rex  v. 
Fraser,  Alison,  Princ.  625,  cited  in  Wills,  Circ.  Ev.  168. 

An  alibi  is  a  legitimate  and  proper  defense  to  make,  and  if  sat- 
isfactorily made  is  conclusive.  Innocent  men  would  and  should 
resort  to  it,  and  no  doubt  it  has  often  been  the  means  of  escape 
under  wrongful  charges.  But  it  is  a  defense  sometimes  attempted 
by  contrivance,  subornation  and  perjury.  It  does  not  involve 
a  complicated  inquiry.  Proof  of  it  is  measurably  simple  and 
direct,  therefore  persons  may  fabricate  it  with  greater  hope  of 
success  and  less  fear  of  punishment  than  many  other  kinds  of  evi- 
dence. 

§410.  What  the  Proof  Involves. — Proof  of  it  involves  ac- 
curacy as  to  dates,  times  of  day  and  identity  of  persons  seen,  sub- 

681 


6S2  LAW    OF    EVIDENCE    IN    CRIMINAL    CASES. 

jects  in  respect  to  which  honest  witnesses  oftener  mistake  than  in 
respect  to  many  other  things  to  which  they  testify.  The  direct 
proof  therefore  offered  to  sustain  an  alibi  is  to  be  subjected  to  a 
rigid  scrutiny,  because  standing  by  itself  it  does  not  attempt  to 
control  or  rebut  the  evidence  of  facts  sustaining  the  charge,  but 
attempts  to  prove  affirmatively  another  fact  inconsistent  with  it. 
It  is  in  direct  conflict  with  all  the  evidence  tending  to  show  the 
guilt  of  the  defendant,  because  in  so  far  as  that  tends  to  show  he 
committed  the  offense,  it  tends  in  the  same  degree  to  show  that 
he  was  at  the  place  of  the  crime  when  committed.  If  therefore 
the  proof  of  the  alibi  does  not  outweigh  the  proof  that  he  was  at 
the  place  when  the  crime  was  committed,  it  is  not  sufficient.  In 
this  conflict  of  evidence,  whatever  tends  to  support  one  theory, 
tends  in  the  same  degree  to  rebut  and  overthrow  the  other,  and  it 
is  for  the  jury  to  decide  which  is  the  truth.  State  v.  Ward,  61 
Vt.  153. 

It  cannot  be  held  as  a  principle  of  law,  that  the  defense-  of 
alibi  is  liable  to  great  abuse,  growing  out  of  the  ease  with  which 
it  may  be  fabricated,  and  the  difficulty  of  detecting  the  fabrica- 
tion. This  is  not  always  true  of  such  a  defense.  Sometimes  the 
evidence  which  tends  to  prove  an  alibi  is  open,  clear,  and  direct, 
without  any  of  the  signs  of  fabrication  about  it.  Sometimes, 
doubtless,  it  is  open  to  suspicion. 

So  may  evidence  be  which  tends  to  prove  any  other  fact.  Law 
is  fixed  and  uniform;  it  cannot  be  one  thing  in  one  case,  and  an- 
other thing  in  another  case,  as  evidence  may  be. 

AVe  know  of  no  rule  of  law  which  attaches  a  suspicion  to,  or 
fixes  a  blemish  upon,  evidence  tending  to  prove  an  alibi,  any  more 
than  it  does  upon  evidence  tending  to  prove  any  other  fact.  Al- 
ii n  v.  State,  63  Ind.  598. 

§  420.  Credibility  of— how  Strengthened.— "The  credibility 
of  an  alibi  is  greatly  strengthened  if  it  be  set  up  at  the  moment 
when  the  accusation  is  first  made,  and  consistently  maintained 
throughout  the  subsequent  proceedings.  On  the  other  hand,  it  is 
a  material  circumstance  to  lessen  the  weight  of  a  defense  of  this 
kind,  if  it  be  not  resorted  to  until  sometime  after  the  charge  has 
been  made;  or  if  having  been  once  resorted  to,  a  different  and 
inconsistent  defense  is   afterwards   set  up.     AVills,  Circ.   Ev.  16S. 

••This  defense  often  involves  considerations  of  the  most  difficult 
and  perplexing  nature.     It  is  not  an  uncommon  artifice  to  endea- 


EVIDENCE    OF    ALIBI.  6S3 

vor  to  give  coherence  and  effect  to  a  fabricated  defense  of  alibi, 
by  assigning  the  events  of  another  day  to  that  on  which  the  of- 
fense was  committed,  so  that  the  events  being  true  in  themselves, 
are  necessarily  consistent  with  each  other,  and  false  only  as  they 
are  applied  to  the-  day  in  question.  "Wills,  Circ.  Ev.  83."  2  Colby, 
Crim.  L.  chap.  4,  §  7. 

§  421.  Want  of  Harmony  in  the  Decisions.— There  is  not 
■entire  harmony  in  the  decisions  as  to  the  degree  of  proof  of  an 
alibi  which  must  be  produced,  in  order  to  entitle  a  defendant  to 
an  acquittal.  In  French  v.  State,  12  Ind.  670,  74  Am.  Dec.  229, 
the  trial  court  instructed  the  jury  that,  if  he  (the  defendant)  seeks 
to  prove  an  alibi,  he  must  do  it  by  evidence  which  outweighs  that 
given  for  the  state,  tending  to  fix  his  presence  at  the  time  and 
place  of  the  crime.  This  instruction  was  held  to  be  erroneous. 
In  State  v.  Waterman,  1  Nev.  543,  the  following  instruction  was 
held  to  be  erroneous  :  "It  is  not  sufficient  to  warrant  an  acquit- 
tal that  he  merely  raised  a  reasonable  doubt  as  to  whether  the 
alibi  is  established,  but,  as  before  stated,  you  must  be  satisfied  of 
its  truth  by  testimony.  If  you  believe  from  the  testimony  that 
the  defendant.  Waterman,  at  the  time  alleged,  was  in  the  city  of 
Virginia,  you  must  acquit  him."  In  the  course  of  a  very  lucid 
and  able  opinion,  the  court  say  :  '-The  rule  of  law  and  of  common 
sense  is.  that  where  there  is  a  reasonable  doubt  as  to  whether  a 
prisoner  has  committed  the  act  or  offense  with  which  he  stands 
charged,  he  must  be  acquitted,  whether  the  doubt  arises  from  a 
defect  in  the  evidence  introduced  by  the  state  or  from  the  evi- 
dence in  rebuttal  by  the  defendant."  In  the  trial  of  Webster  for 
the  murder  of  Parkman,  before  the  supreme  judicial  court  of 
Massachusetts,  the  following  direction  was  given  to  the  jury:  "In 
the  ordinary  case  of  an  alibi  when  a  party  charged  with  a  crime 
attempts  to  prove  that  he  was  in  another  place  at  the  time,  all  the 
evidence  tending  to  prove  that  he  committed  the  offense  tends  in 
the  same  degree  to  prove  that  he  was  at  the  place  when  it  was 
committed.  If,  therefore,  the  proof  of  the  alibi  docs  not  out- 
weigh the  proof  that  he  was  at  the  place  when  the  offense  was 
committed,  it  is  not  sufficient."  Com.  v.  Webster,  5  Cush.  324, 
52  Am.  Dec.  711.  This  doctrine  was  simply  recognized  and  ap- 
proved in  State  v.  Vincent,  24  Iowa.  570,  95  Am.  Dec.  753; 
though  the  alibi  sought  to  be  established  in  thai  case  was  of  the 
alleged  deceased,  and  not  of  the  prisoner. 


684  LAW    OF    EVIDENCE    IN    CRIMINAL    CASES. 

The  evidence  sustaining  it  must  outweigh  the  proof  tending  to 
establish  its  contradictory  hypothesis.  For  this  purpose  a  bare 
preponderance  is  sufficient.  A  preponderance  of  testimony  is 
capable  of  producing  very  different  degrees  of  conviction.  It 
may  be  barely  sufficient  to  turn  the  scale  of  probability  in  favor 
of  the  proposition  which  the  mind  is  called  upon  to  adopt. 
Where  it  so  turns  the  scale,  the  fact  which  it  favors  is  said  to  be 
proved  by  a  preponderance  of  evidence.  From  this  point  the 
evidence  may  gradually  increase  in  intensity  until  it  creates  full 
satisfaction,  which  is  not  distinguishable  from  satisfaction  beyond 
a  reasonable  doubt.  /State  v.  Hardin,  46  Iowa,  623,  26  Am.  Rep. 
174. 

There  is  sharp  conflict  in  decisions  in  regard  to  the  extent  to- 
which  the  evidence  must  go  in  order  to  render  the  alibi  effectual. 

§  422.  Burden  of  Proving  with  the  Defendant. — When 
the  defense  is  that  of  an  alibi,  the  law  casts  the  burden  upon  the 
defendant  to  reasonably  satisfy  the  jury  that  he  was  elsewhere  at 
the  time  of  the  commission  of  the  offense.  Pelluni  v.  State,  89' 
Ala.  32.  This  rule  of  law,  as  applicable  to  the  defense  of  an  alibi, 
does  not  require  of  the  defendant  to  reasonably  satisfy  the  jury 
of  his  exact  whereabouts  every  moment  of  the  time  necessary  to 
cover  the  period  when  the  offense  was  committed,  but  he  is  re- 
quired to  prove  such  a  state  of  facts  or  circumstances  as  to  reason- 
ably satisfy  the  jury  that  he  was  elsewhere  than  at  the  place 
where  and  at  the  moment  when  the  offense  was  committed. 
Pelluni  v.  State,  supra',  Allbritton  v.  State  (Ala.)  Jan.  7,  1892;. 
Fate  v.  State,  1  Am.  &  Eng.  Enc.  Law,  454, 455;  1  Bishop,  Crim. 
Proc.  §^  1066,  1067. 

The  extent  to  which  the  proof  must  go  in  making  out  an  inde- 
pendent defense  has  been  the  subject  of  much  discussion,  some 
authorities  holding  that  it  is  sufficient  in  any  case  to  create  a 
tea-. liable  doubt  of  guilt,  while  others  favor  the  doctrine  that  the 
defense  must  be  made  out  to  the  satisfaction  of  the  jury.  The 
rule  laid  down  in  Wharton's  Criminal  Evidence  (§  331)  is  that 
when  the  case  of  the  prosecution  is  admitted  and  the  defense  is 
one  exclusively  of  avoidance,  then  this  defense  must  be  made  out 
by  the  defendant  by  a  preponderance  of  proof;  to  which  he  cites 
many  authorities.  He  applies  this  rule  to  all  facts  set  up  by  the 
defendant  which  do  not  traverse  any  averment  of  the  indictments 
Kent  v.  People,  S  Colo.  563. 


EVIDENCE    OF    ALIBI.  635 

§  423.  Prejudicial    Theories  Regarding   this   Defense.— 

We  have  met  with  some  dicta  to  the  effect  that  if  this  defense  of 
alibi  turns  out  to  be  untrue  it  amounts  to  a  conviction.  Wills, 
Circ.  Ev.  92,  citing  Justice  Daly  in  Rex  v.  Kill  an,  20  How.  St. 
Tr.  1085.  "But,"  says  Mr.  Wills,  "it  must  not  be  overlooked 
that  such  is  the  weakness  of  human  nature,  there  have  been  cases 
where  innocence,  under  the  alarm  of  menacing  appearances,  has 
fatally  committed  itself  by  the  simulation  of  facts  for  the  purpose 
of  evading  the  force  of  circumstances  of  apparent  suspicion. 
When  the  defense  of  an  alibi  fails,  it  is  generally  on  the  ground 
that  the  witnesses  are  disbelieved  and  the  story  considered  to  be 
a  fabrication,  and  from  the  facility  with  which  it  may  be  fabrica- 
ted it  is  commonly  entertained  with  suspicion  and  sometimes,  per 
haps,  unjustly  so." 

As  before  stated  the  evidence  of  an  alibi  is  either  true  or  false. 
If  true  it  should  acquit  the  defendant.  If  false,  the  introduction 
of  it,  and  the  attempt  to  procure  an  acquittal  by  it,  constitutes  a 
circumstance  against  him.  The  introduction  of  false  or  fabricated 
evidence  in  a  defense  is  always  regarded  as  an  inferential  admis- 
sion of  guilt,  although  not  of  a  conclusive  character.  But  to  be 
entitled  to  any  force,  as  it  is  only  circumstantial  and  collateral  to 
the  main  issue,  it  should  be  established  beyond  all  question,  that 
the  party  has  been  guilty  of  producing  false  and  fabricated  evi- 
dence. If  this  is  doubtful  no  weight  should  be  given  to  it.  State 
v.  Ward,  61  Vt.  153. 

"  It  must  be  admitted,"  says  Sir  Michael  Foster  in  his  Crown 
Law,  368,  "that  mere  alibi  evidence  lieth  under  a  great  and  gen- 
eral prejudice  and  ought  to  be  heard  with  uncommon  caution; 
but  if  it  be  founded  in  truth  it  is  the  best  negative  evidence  that 
can  be  offered;  it  is  really  positive  evidence  which  in  the  nature 
of  things  necessarily  implieth  a  negative  and  in  many  cases  it  is 
the  only  evidence  that  an  innocent  man  can  offer." 

In  Bricdcmd  v.  Com.  74  Pa.  469,  the  supreme  court  of  Penn- 
sylvania carefully  considered  this  question  and  says:  "When  a 
defense  rests  on  proof  of  an  alibi,  it  must  cover  the  time  when 
the  offense  is  shown  to  have  been  committed,  so  as  to  preclude 
the  possibility  of  the  prisoner's  presence  at  the  place  of  the  mur- 
der. Although  the  prisoner  makes  no  admission  of  guilt  by  set 
ting  up  an  alibi,  yet  clearly  the  value  of  the  defense  consists  in 
showing  that  he  was  absent   from  the  place  where  the  deed  was 


686  LAW    OF    EVIDENCE    IN    CKLMINAL   CASES. 

done,  at  the  very  time  the  evidence  of  the  commonwealth  tends 
to  fix  its  commission  upon  him;  for,  if  it  be  possible  that  he 
could  have  been  at  both  places,  the  proof  of  the  alibi  is  value- 
less." 

g  424.  Shifting  Nature  of  the  Burden  of  Proof.— "In  an 
indictment  for  crime,  the  defendant,  ordinarily,  is  entitled  to  have 
the  whole  case  left  to  the  jury,  upon  the  evidence  of  both  sides, 
and  if  upon  a  consideration  of  all  such  evidence,  every  reasonable 
doubt  be  not  removed,  the  jury  should  acquit.  Therefore  in  a  case 
of  larceny,  an  instruction  to  the  jury  that  the  burden  of  proof  to 
show  the  guilt  of  the  prisoner  is  upon  the  state,  but  when  the 
state  has  made  out  a  prima  facie  case,  and  the  prisoner  attempts 
to  set  up  an  alibi,  the  burden  of  proof  is  shifted;  and  if  the  de- 
fense fail  to  establish  the  alibi  to  the  satisfaction  of  the  jury,  they 
must  find  the  prisoner  guilty,  is  erroneous." 

§  425.  Not  Bound  to  Prove  beyond  Reasonable  Doubt. — 

In  Tennessee,  the  law  has  been  laid  down  in  substantially  the 
same  terms;  that  where  the  charge  was  "that  the  proof  necessary 
to  establish  the  alibi  must  be  as  certain  as  that  by  which  the  state 
would  have  to  establish  the  guilt  of  the  accused,"  this  was  held  to 
be  erroneous,  because  its  effect  was  to  exclude  the  prisoner  from 
the  benefit  of  any  reasonable  doubt  as  to  his  guilt,  arising  from 
the  proof  touching  the  alibi,  in  connection  with  other  proof  in  the 
cause;  and  further  that  the  prisoner  was  not  bound  to  prove  an 
alibi  beyond  a  reasonable  doubt.     Chappel  v.  State,  7  Coldw.  92. 

"Evidence  of  an  alibi,"  says  the  supreme  court  of  Illinois  (Mil- 
!<  r  v.  /'.  ople,  39  111.  457)  "  whether  sufficient  to  render  the  guilt 
of  the  defendant  impossible  or  only  improbable,  is  proper  for  the 
jury,  and  he  is  entitled  to  any  reasonable  doubt  that  may  entertain 
upon  this  point;  and  if  he  attempts  to  prove  an  alibi,  and  fails  to 
do  so,  it  should  have  no  greater  weight  to  convince  them  of  his 
guilt,  than  a  failure  to  prove  any  other  important  item  of  defense, 
and  should  not,  generally  speaking,  operate  to  his  prejudice."  In 
similar  vein  is  a  decision  of  the  South  Carolina  court. 

We  can  see  no  injustice  in  requiring  matters  of  defense  to  be 
established  according  to  the  ordinary  rule  of  evidence — that  of  a 
"preponderance,"  which  is  the  lowest  degree  capable  of  producing 
conviction.  If  a  party  charged  with  crime  pleads  a  particular 
defense,  such  as  insanity  or  an  alibi  (or  self-defense)  the  fact  must 
be  proved  as  it  is  alleged  by  him.     Preponderance  of  evidence  i& 


EVIDENCE    OF   ALIBI.  687 

the  lowest  degree  capable  of  producing  conviction.  Less  cannot 
be  required  of  one  whose  duty  it  is  to  establish  a  particular  fact, 
subject,  of  course,  to  the  general  rule,  that  a  party  charged  with 
crime  is  entitled  to  the  benefit  of  all  reasonable  doubts.  State 
v.  Paulk,  18  S.  C.  515;  State  v.  Bundy,  21  S.  C.  139.  State  v. 
Nance,  25  S.  C.  173. 

The  defendant  is  not  required  to  prove  that  defense  beyond  a 
reasonable  doubt  to  entitle  him  to  an  acquittal.  It  is  sufficient  if 
the  evidence  upon  that  point  raises  a  reasonable  doubt  of  his 
presence  at  the  time  and  place  of  the  commission  of  the  crime 
charged.     McLain  v.  State,  18  Neb.  151. 

§  426.  Views  of  Mr.  Justice  Best.— The  story  of  Susannah 
and  the  "Elders  in  the  Apocrypha  affords  a  very  early  and  most 
admirable  example.  The  two  false  witnesses  were  examined  out 
of  the  hearing  of  each  other;  on  being  asked  under  what  sort  of 
tree  the  criminal  act  was  done,  the  first  said  "a  mastick  tree'''  and 
the  other  "a  holm  tree."  The  judgment  of  Lord  Stowell  also  in 
Evans  v.  Evans,  1  JIagg.  Consist.  Rep.  105,  shows  how  a  sup- 
posed transaction  may  be  disproved,  by  its  inconsistency  with  sur- 
rounding circumstances.  "What  had  you  for  supper?"  says  a 
modern  jurist.  2  Bentham,  Judicial  Ev.  9.  "To  the  merits  of 
the  cause,  the  contents  of  the  supper  were  in  themselves  altogether 
irrelevant  and  indifferent.  But  if,  in  speaking  of  a  supper  given 
on  an  important  or  recent  occasion,  six  persons,  all  supposed  to  be 
present,  give  a  different  bill  of  fare,  the  contrariety  affords  evi- 
dence pretty  satisfactory,  though  but  of  the  circumstantial  kind, 
that  at  least  some  of  them  were  not  there."  The  most  usual  ap- 
plication of  this  is  in  detecting  fabricated  alibis.  These  seldom 
succeed  if  the  witnesses  are  skillfully  cross-examined  out  of  the 
hearing  of  each  other;  especially  as  courts  and  juries  are  aware 
that  a  false  alibi  is  a  favorite  defense  with  guilty  persons,  and 
consequently  listen  with  suspicion  even  to  a  true  one.  2  Best, 
Ev.  §  655. 

§427.  The  General  Rule. — The  rule  supported  by  the 
weight  of  authority  is,  that  while  the  burden  <<(  proof  to  establish 
an  alibi  is  on  the  defendant,  yet,  even  though  the  evidence  may 
fall  short  of  establishing  the  pica,  it  may  be  considered  by  the 
jury  with  the  entire  evidence  in  determining  whether  a  reasonable 
doubt  of  defendant's  guilt  has  been  raised.  People  v.  Fong  A  ft 
Sing,  64  Cal.  253;  Kaufman  v.  State,  49  Ind.  248;   Howard  v. 


6SS  LAW    OF    EVIDENCE    IN    CRIMINAL    CASES. 

State,  50  Ind.  190;  Com.  v.  Choate,  105  Mass.  451;  State  v.  Beits, 
83  X.  C.  634;  TPbto*  v.  State,  39  Ohio  St.  215;  Watson  v.  Com, 
95  Pa.  418;  State  v.  Hardin,  46  Iowa,  623,  26  Am.  Rep.  174; 
Stab  v.  1 1',/ Avow,  7  S.  C.  63  But  see  Ware  v.  State,  67  Ga.  349; 
Bryan  v.  &tote,  74  Ga.  393.     Rapalje,  Criin.  Proc.  §  286. 

§428.  Miscellaneous  Decisions. — The  defense  of  alibi  is 
"not  one  requiring  that  the  evidence  given  in  support  of  it  should 
be  scrutinized  otherwise  or  differently  from  that  given  in  sup- 
port of  any  other  issue  in  the  oause;"  and  we  may  add  that  if 
trial  courts  will  give  an  instruction  to  this  effect  the  ends  of  jus- 
tice will  be  equally  as  well  subserved,  and  the  administration  of 
the  laws  less  embarrassed.     People  v.  Lattimore,  86  Cal.  403. 

To  establish  an  alibi  the  range  of  evidence  in  respect  to  time 
and  place  must  be  such  as  reasonably  to  exclude  the  possibility  of 
the  presence  of  the  accused.  Wade  v.  State,  65  Ga.  756;  Com  v. 
Seyhert,  4  Kulp,  4. 

An  alibi  need  not  be  proved  beyond  reasonable  doubt;  it  is 
established  by  a  preponderance  of  evidence.  Walters  v \  State,  39 
Ohio  St.  215. 

Evidence  tending  to  establish  an  alibi,  even  though  not  deemed 
by  the  jury  sufficient  for  that  purpose,  may  be  considered  by 
them,  together  with  the  other  evidence  in  the  cause,  in  determin- 
ing whether  guilt  has  been  shown  beyond  a  reasonable  doubt. 
Watson  v.  Com.  95  Pa.  418. 

If  the  jury  should  regard  the  evidence  of  alibi  as  preponderat- 
ing, their  belief  would  be  that  the  defendant  was  where  he  could 
not  have  committed  the  crime,  and  having  reached  that  conclusion 
an  acquittal  should  follow,  of  course.  State  v.  McCracken,  66 
Iowa,  569. 

Where  the  evidence  adduced  to  prove  an  alibi  is  sufficient,  con- 
sidered with  the  other  evidence,  to  create  in  the  minds  of  the  jury 
a  reasonable  doubt  as  to  defendant's  guilt,  he  is  entitled  to  an  ac- 
quittal.    Blankenship  v.  State,  55  Ark.  244. 

In  the  case  of  the  People  v.  Lamed,  7  N.  Y.  448,  the  presid- 
ing judge  charged  the  jury  : 

'•That  the  defense  interposed  by  the  prisoner  was  what  was  in 
law  denominated  an  alibi,  and  if  the  three  witnesses  called  by  him 
to  sustain  it  had  testified  truly,  the  prisoner  should  be  acquitted; 
that  it  was  however  insisted  by  the  prosecution  that  the  defense 
was  a  fabricated  one  and  sustained  by  perjury;  that  this  issue  the 


EVIDENCE   OF    ALIBI.  689 

jury  were  to  determine;  that  it  was  undoubtedly  true  that  the  de- 
fense of  an  alibi  is  not  unfrequently  the  felon's  plea;  that  when  a 
prisoner  finds  himself  surrounded  by  facts  and  circumstances 
which  threaten  to  overwhelm  him  and  establish  his  guilt,  he  not  un- 
frequently resorts  to  this  defense  and  seeks  to  maintain  it  by  per- 
jured witnesses;  and  that  it  was  the  remark  of  an  eminent  judge 
in  England  that  'in  his  opinion,  more  perjury  had  been  committed 
in  defenses  of  this  description  than  in  all  other  defenses  interposed 
in  criminal  trials.'  " 


CHAPTER  L. 

COMPULSORY  EXAMINATION  OF  PERSON  OR  PAPER. 

§  429.  Right  to  Examine  Generally  Denied  in  Criminal  Cases, 

430.  Views  of  Mr.  Justice  Balcom  in  the  McCoy  Case. 

431.  The  Authorities  Examined. 

432.  The  Rule  in  Civil  Actions  for  Damages. 

433.  Compulsory  Production  of  Paper. 

§  429.  Right  to  Examine  Generally  Denied  in  Criminal 

Cast's. — In  criminal  trials,  whether  the  defendant  can  be  com- 
pelled by  order  of  the  court,  against  his  consent,  to  submit  to  a 
physical  examination,  there  is  a  difference  of  opinion.  It  has  been 
supposed  that  it  could  not  be  done,  because  this  compels  the- 
accused  to  produce  evidence  against  himself,  and  violate  a  funda- 
mental principle,  as  was  held  in  a  English  custom-house  case, 
where  a  motion  to  compel  the  production  of  books  was  denied. 
A  forcible  examination  of  a  female  prisoner,  under  an  oath  of  a. 
coroner,  by  physicians,  to  ascertain  if  she  had  been  pregnant  and 
recently  delivered  of  a  child,  was  a  violation  of  the  Constitution. 
But  we  find  on  this  subject  that  the  authorities  are  in  great  con- 
flict, especially  upon  questions  of  identity  of  the  prisoner,  when 
that  is  the  issue,  and  it  becomes  necessary  to  identify  him  by 
marks  or  sears  on  his  person.  We  find  a  case  decided  in  Nevada 
in  1S79,  State  v.  Ah  Ckuey,  14  Nev.  79,  33  Am.  Rep.  530,. 
in  which  the  defendant  was  indicted  for  murder,  and  the 
question  of  his  identity  became  important.  A  witness  stated 
that  he  knew  the  defendant,  and  that  he  had  tattoo  marks  (a 
female  head  and  bust)  on  his  right  fore-arm.  Defendant  was 
compelled  by  the  court,  against  his  protest,  to  exhibit  his  arm  to 
the  jury  and  show  the  marks  to  them.  This  was  held  to  be 
proper,  and  that  it  did  not  violate  any  constitutional  provision,  as 
meaning  that  no  person  shall  be  compelled  to  testify  as  a  witness 
against  himself;  that  it  was  not  prejudicial  to  defendant  and  was 
not  erroneous. 

Hawley,  J.,  among  many  other  things,  said :  "  The  Con- 
stitution means  just  what  a  fair  and  reasonable  interpreta- 
tion of  its  language  imports.  No  person  shall  be  compelled  to 
be  a  witness,  that  is,  to  testify  against  himself.  To  use  the  com- 
mon phrase,  it  '  closes  the  mouth '  of  the  prisoner.     A  defendant 

690 


COMPULSORY    EXAMINATION    OF   PERSON    OR    PAPER.  691 

in  a  criminal  case  cannot  be  compelled  to  give  evidence  under 
oath  or  affirmation,  or  make  any  statement  for  the  purpose  of 
proving  or  disproving  any  question  at  issue  before  any  tribunal, 
court,  judge  or  magistrate.  This  is  the  shield  under  which  he  is 
protected  by  the  strong  arm  of  the  law,  and  this  protection  was 
given,  not  for  the  purpose  of  evading  the  truth,  but  as  before 
stated,  for  the  reason  that  in  the  sound  judgment  of  the  men  who 
framed  the  constitution,  it  was  thought  that,  owing  to  the  weak- 
ness of  human  nature,  and  the  various  motives  that  actuate  man- 
kind, a  defendant  accused  of  crime  might  be  tempted  to  give 
evidence  against  himself  that  was  not  true."  In  fairness,  an 
extract  from  the  dissenting  opinion  of  Leonard,  J.,  should  be 
noticed.  After  quoting  from  the  above  opinion,  he  says:  "In 
my  opinion,  the  court  has  not  stated  the  only  reason  why  the 
provision  in  question  was  placed  in  the  Constitution.  Had  that 
been  the  only  one,  there  would  have  been  a  prohibition  against 
allowing  a  defendant  to  testify  for  himself;  because  in  the  latter 
case  there  was  and  is  a  hundred-fold  more  danger  of  falsehood 
than  in  the  former.  Is  there  not  an  additional  reason  why  this 
provision  was  adopted  ?  Was  it  not,  in  part,  at  least,  because  of 
the  enlightened  spirit  of  the  age,  that  a  man  accused  of  a  crime 
should  not  be  compelled  to  furnish  evidence  of  any  kind  which 
might  tend  to  his  conviction  ?  Did  it  not  come,  to  some  extent, 
from  the  spirit  of  justice  and  humanity  which  established  the 
first  of  all  legal  presumptions — that  every  person  should  be  con- 
sidered innocent  until  proven  guilty '.  Can  the  person  of  a 
criminal  be  examined  against  his  objection,  to  furnish  evidence  of 
his  identity,  and  tending  to  his  conviction  i  Harris,  Identifica- 
tion, §§  605,  606,  citing  Rex  v.Worsenham,  1  Ld.  Raym.  705; 
Reg.  v.  Mead,  -1  Ld.  Raym.  927;  Roe  v.  Harvey,  4  Burr.  24S9; 
People  v.  McCoy,  45  How.  Pr.  216;  State  v.  Ah  Ohuey,  14  Nov. 
79;  Union  Pac.  R.  Co.  v.  Botsford,  141  U.  S.  250,  35  L  ed. 
734;  McQuigan  v.  Delaware,  L.  da  W.  R.  Co.  14  L  U.  A.  4:66, 
129  N.  Y.  5U;  Schroeder  v.  Chicago,  R.  1.  dk  P.  R.  Co.  47  Iowa, 
375. 

§  430.  Views  of  Mr.  Justice  Balcom  in  the  McCoy  Case.— 
"The  forcible  examination  of  the  prisoner  by  the  physicians  for 
the  purpose  of  obtaining  evidence  that  she  had  been  pregnant, 
and  had  been  delivered  of  a  child  within  two  or  three  weeks 
previous  to  the  time  of  such  examination,  was  in  violation  of  the 


692  LAW    OF    EVIDENCE    IN    CRIMINAL    CASES. 

spirit  and  meaning  of  the  constitution,  which  declares  that  '  no 
person  shall  be  compelled  in  any  criminal  case  to  be  a  witness 
against  himself.'  They  might  as  well  have  sworn  the  prisoner, 
and  compelled  her,  by  threats,  to  testify  that  she  had  been  preg- 
nant and  been  delivered  of  the  child,  as  to  have  compelled  her,  by 
threats,  to  allow  them  to  look  into  her  person,  with  the  aid  of  a 
speculum,  to  ascertain  whether  she  had  been  pregnant  and  been 
recently  delivered  of  a  child.  .  .  .  '  Has  this  court  the  right  to 
compel  the  prisoner  now  to  submit  to  an  examination  of  her  private 
parts  and  breasts,  by  physicians,  and  then  have  them  testify  that 
from  such  examination  they  are  of  the  opinion  that  she  is  not  a 
virgin,  and  has  had  a  child  ?  It  is  not  possible  that  this  court  has 
that  right;  and  it  is  too  clear  to  admit  of  argument  that  evidence 
thus  obtained  would  be  inadmissible  against  the  prisoner.'"  J3al- 
com,  J.,  in  People  v.  McCoy,  45  How.  Pr.  216. 

§  431.  The  Authorities  Examined. — Whether  the  court  has 
power  to  order  a  compulsory  examination  by  experts  of  the  per- 
son of  a  defendant  in  a  criminal  proceeding,  is  an  important  ques- 
tion which  has  been  somewhat  considered  by  the  courts,  and  upon 
which  a  difference  of  opinion  exists.  The  cmestion  turns  on  the 
construction  to  be  placed  on  the  constitutional  provisions  which 
provide  that  the  accused  shall  not  be  compelled  to  give  evidence 
against  himself  in  any  criminal  case.  Such  a  provision  is  found 
in  the  Constitution  of  the  United  States,  and  in  the  constitutions 
of  the  several  states,  with  hardly  an  exception.  In  State  v.  Jacobs, 
50  N.  C.  259,  the  supreme  court  of  North  Carolina,  in  185S,  held 
that  a  defendant  could  not  be  compelled  to  exhibit  himself  to  the 
inspection  of  a  jury  fur  the  purpose  of  enabling  them  to  deter- 
mine his  status  as  a  free  negro.  And  this  ruling  was  approved 
by  the  same  court  in  Stale  v.  Johnson,  67  JNT.  C.  58,  in  1S72. 
Rogers,  Expert  Testimony,  §  78. 

In  a  recent  case  in  Iowa  a  physician  made  an  examination  of 
the  face  and  neck  of  the  defendant  while  in  jail,  and  testified  that 
he  found  several  scratches.  At  the  trial  the  defendant  did  not 
object  to  the  admission  of  the  testimony,  but  on  appeal  he  insisted 
that  there  was  error  in  admitting  it,  and  claimed  that  the  testi- 
mony was  in  respect  to  an  examination  to  which  he  was  compelled 
to  siil unit,  and  that  such  examination  was  in  violation  of  his  con- 
stitutional rights,  and  that  being  so  that  the  admission  of  the  tes- 
timony was   error,  even   though   not   objected    to.      The   court 


COMPULSORY    EXAMINATION   OF   PERSON    OR   PAPER.  693 

replying  to  this:  "Without  considering  the  legal  questions  sug- 
gested, it  is  sufficient  to  say  that  we  see  no  evidence  that  the 
defendant  was  compelled  to  submit  to  an  examination.  It  is  true 
the  evidence  shows  that  when  Dr.  Harman  went  into  the  jail 
the  sheriff  accompanied  him,  but  there  is  no  evidence  that  the 
sheriff  did  or  said  anything  in  respect  to  the  examination.  "We 
think  there  is  no  error  in  admitting  the  evidence."  State  v. 
St  ruble,  71  Iowa,  11. 

A  prisoner  on  trial  for  crime  cannot  be  required,  against  objec- 
tion, to  try  on  a  shoe  to  determine  whether  tracks  found  at  the 
scene  of  the  offense  were  his  own;  nor  if  he  objects,  can  he  prop- 
erly be  required  to  measure  the  shoe  after  trying  it  on.  But  if 
he  tries  it  on  without  objection,  the  ruling  that  he  must  measure 
it  is  not  prejudicial  error,  as  any  witness  could  do  it  as  well  as  he. 
People  v.  Mead,  50  Mich.  228. 

A  defendant  on  trial  cannot  be  required  to  make  evidence 
against  himself  by  trying  on  shoes  to  fit  tracks  found  near  the 
scene  of  the  offense.  Stokes  v.  State,  5  JBaxt.  619,  30  Am.  Rep. 
72. 

"Take  the  case  of  Stokes.  The  prosecution  sought  to  compel 
the  defendant  in  the  court-room  to  put  his  foot  in  a  pan  of  mud, 
in  order  to  identify  the  track  thus  made  with  a  track  found  in 
mud  of  equal  softness  and  similar  character,  made  by  a  bare  foot 
near  the  scene  of  the  homicide.  The  court  refused  to  compel  the 
defendant  '  to  put  his  foot  in  it.'  On  appeal,  the  case  was 
reversed  because  this  circumstance  might  have  had  an  influence 
on  the  jury  prejudicial  to  the  defendant. 

"It  is  argued  that  the  act  of  the  prosecution  tended  to  compel 
the  defendant  to  make  evidence  against  himself.  I  am  of  opinion 
that  too  much  importance  has  been  attached  and  too  much  promi- 
nence given  to  the  words,  '  compelled  to  make  evidence  against 
himself.'  The  defendant  Stokes,  if  he  was  the  guilty  person,  was 
making  evidence  against  himself  when  he  put  his  foot  in  the  mud 
near  the  scene  of  the  homicide,  and  when  arrested  he  could  have 
been  compelled  to  put  his  foot  in  that  track,  against  his  will,  and 
if  his  foot  corresponded  with  the  track,  that  fact  would  have  been 
admissible  upon  the  trial  of  his  case.  Stale  v.  Graham,  74  N.  C. 
646,  21  Am.  Rep.  493."  Hawley,  J.,  in  State  v.  Ah  Chuey,  14 
Nev.  79,  33  Am.  Rep.  530. 

In  a  case  of  homicide  the  defendant  makes  evidence  against 
himself  by  being  compelled   to  surrender  the  weapon  with  which 


C'.'i  LAW    OF    EVIDENCE    IN    CRIMINAL    CASES. 

the  offense  was  committed,  for  it  can  always  be  used  as  evidence 
against  him.  A  burglar  is  compelled  to  give  evidence  against  him- 
self, when  he  is  forced  to  surrender  false  keys  and  other  burglarious 
instruments  found  in  his  possession.  A  counterfeiter  is  compelled 
to  give  evidence  against  himself,  when  the  dies  he  had  manufac- 
tured and  used  are  discovered  and  brought  into  court  for  inspec- 
tion. 

The  application  of  the  principle  sought  to  be  enforced  upon  the 
reasoning  of  the  court  in  State  v.  Jaeohs,  50  N.  C.  259,  as  being 
within  the  protection  of  the  constitution,  would,  if  logically  car- 
ried out,  apply  to  all  these  and  many  other  similar  cases. 

In  the  case  of  Day  v.  State,  63  Ga.  669,  the  court  held:  "Evi- 
dence that  a  witness  forcibly  placed  defendant's  foot  in  certain 
tracks  near  the  scene  of  the  burglary,  and  that  they  were  of  the 
same  size,  is  not  admissible."  A  defendant  cannot  be  compelled  to 
criminate  himself  by  acts  or  words.  The  court  says:  "By  the 
constitution  of  this  state  no  person  shall  be  compelled  to  give  tes- 
timony tending  in  any  manner  to  criminate  himself;  nor  can  one 
by  force  compel  another  against  his  consent  to  put  his  foot  in  a 
shoe-track  for  the  purpose  of  using  it  as  evidence  against  him  on 
a  criminal  side  of  the  court."  Blackwell  v.  State,  67  Ga.  76,  44 
Am.  Rep.  717. 

"The  object  of  every  criminal  trial  is  to  ascertain  the  truth. 
The  constitution  prohibits  the  state  from  compelling  a  defendant 
to  lie  a  witness  against  himself,  because  it  was  believed  that  he 
might,  by  the  flattery  of  hope  or  suspicion  of  fear,  be  induced  to 
tell  a  falsehood.  None  of  the  many  reasons  urged  against  the 
rack  or  torture,  or  against  the  rule  compelling  a  man  'to  be  a  wit- 
no-  against  himself,'  can  be  urged  against  the  act  of  compelling 
a  defendant,  upon  a  criminal  trial,  to  bare  his  arm  in  the  presence 
of  the  jury,  so  as  to  enable  them  to  discover  whether  or  not  a  cer- 
tain mark  could  be  seen  imprinted  thereon.  Such  an  examina- 
tion could  not,  in  the  very  nature  of  things,  lead  to  a  falsehood. 
In  fact,  its  only  object  is  to  discover  the  truth;  and  it  would  be  a 
sad  commentary  upon  the  wisdom  of  the  framers  of  the  constitu- 
tion t<>  say  that  by  the  adoption  of  such  a  clause  they  have  effect- 
ually closed  the  door  of  investigation  tending  to  establish  the 
truth."  6  Grim.  L.  Mag.  S07  ;  State  v.  Ah  Chuey,  14  Nev.  79, 
33  Am.   lie]-.   530. 

§  t32.  The  Rule  in  Civil  Actions  for  Damages. — There 
i>  a  want  of  harmony  in  the  decisions  upon  this  point,  that  is  suf- 


COMPULSORY    EXAMINATION    OF    PERSON    OR    PAPER.  695 

ficiently  indicated  by  the  statement,  that  in  some  jurisdictions  the 
practice  is  held  to  be  utterly  unknown  to  the  law,  while  still  other 
jurisdictions  view  the  entire  topic  as  resting  within  juridical  dis- 
cretion. The  Arkansas  supreme  court  is  in  discord  with  both 
these  views,  and  holds  without  qualification  that  physical  exami- 
nation is  a  matter  of  right  residing  in  the  party  whom  it  is  sought 
to  mulct  in  damages.  The  case  of  Sibley  v.  Smith,  46  Ark.  275, 
55  Am.  Rep.  584,  illustrates  this  position.  Sibley  as  receiver  of 
a  bankrupt  railroad  corporation  was  sued  for  damages  by  Smith 
for  being  forcibly  ejected  from  a  passenger  train,  and  in  conse- 
quence of  which  he  claimed  to  have  received  serious  internal  in- 
juries, for  which  the  jury  gave  a  verdict  for  $2,000  which  was 
reversed.  The  appellate  court  after  citing  and  commenting  on 
several  analagous  cases,  employed  the  following  language  :  uThe 
rule  to  be  deduced,  from  these  cases  is,  that  where  the  plaintiff  in 
an  action  for  personal  injuries  alleges  that  they  are  of  a  perma- 
nent nature,  the  defendant  is  entitled  as  a  matter  of  right,  to  have 
the  opinion  of  a  surgeon  upon  his  conditional  opinion  based  upon 
personal  examination." 

This  question  is  practically  withdrawn  from  legal  controversy 
by  the  recent  decision  of  the  United  States  supreme  court  in  the 
case  of  Union  Pac.  E.  Co.  v.  Botsford,  141  U.  S.  250,  35  L.  ed. 
734.  And  see  the  dissenting  opinion  in  this  case  in  vol.  2,  Rice 
on  Civil  Evidence,  1112. 

It  has  been  held  in  Georgia  that  it  is  within  the  discretion  of 
the  trial  court  to  require  th  3  plaintiff,  suing  for  a  physical  injury 
alleged  to  be  permanent,  to  submit  to  a  physical  examination. 
See  Richmond  &  D.  E.  Co.  v.  Childress,  3  L.  R.  A.  SOS,  and 
note,  S2  Ga.  719. 

If  physical  condition  of  a  party  is  material,  lie  has  a  right,  when 
giving  his  testimony  as  to  it,  to  exhibit  it  to  the  jury,  or  to  an 
expert  called  to  describe  the  injury;  but  he  has  not  a  right  to 
make  unsuccessful  efforts  before  them,  as  evidence  in  his  own  be- 
half, of  his  incapacity.  Abbott,  Trial  Brief,  §  fcJ5 7,  citing  Mulr 
hado  v.  Brooklyn  City  E.  Co.  30  N.  V.  370. 

§433.  Compulsory  Production  of  Paper.— Where  proceed- 
ings were  in  rem  to  establish  a  forfeiture  of  certain  goods  alleged 
to  have  been  fraudulently  imported  without  paying  the  duties 
thereon,  pursuant  to  the  12th  section  of  said  Act,  held  thai  an 
order  of  the  court  made   under  said   5th  section,  requiring  the 


696  LAW    OF   EVIDENCE    IN    CKIMINAL   CASES. 

claimants  of  the  goods  to  produce  a  certain  invoice  in  court  for 
the  inspection  of  the  government  attorney,  and  to  be  offered  in 
evidence  by  him,  was  an  unconstitutional  exercise  of  authority; 
and  that  the  inspection  of  the  invoice  by  the  attorney,  and  its  ad- 
mission in  evidence,  were  erroneous  and  unconstitutional  proceed- 
ings. It  does  not  require  actual  entry  upon  premises  and  search 
for  and  seizure  of  papers  to  constitute  an  unreasonable  search  and 
seizure  within  the  meaning  of  the  4th  Amendment.  A  compul- 
sory production  of  a  party's  books  and  papers  to  be  used  against 
himself  or  his  property  in  a  criminal  or  penal  proceeding,  or  for 
a  forfeiture,  is  within  the  spirit  and  meaning  of  the  Amendment. 
It  is  equivalent  to  a  compulsory  production  of  papers,  to  make 
the  non-production  of  them  a  confession  of  the  allegations  which 
it  is  pretended  they  will  prove.  A  proceeding  to  forfeit  a  per- 
son's goods  for  an  offense  against  the  laws,  though  civil  in  form, 
and  whether  in  rem  or  in  personam,  is  a  criminal  case  within  the 
meaning  of  that  part  of  the  5th  Amendment  which  declares  that 
no  person  "shall  be  compelled,  in  any  criminal  case,  to  be  a  wit- 
ness against  himself."  Boyd  v.  United  States,  116  U.  S.  616,  29 
L.  ed.746. 


PART  V. 

EVIDENCE  IN  ITS  RELATIONS  TO  SPECIFIC  OFFENSES. 


INTRODUCTION. 

In  the  concluding  chapters  the  endeavor  is  to  place  before  the 
practitioner  such  evidentiary  rules  as  regulate  the  trial  of  specific 
offenses  under  a  criminal  indictment. 

All  attempt  is  disclaimed  to  even  tabulate  the  list  of  felonies- 
and  misdemeanors,  but  a  studious  effort  is  made  to  indicate  the 
divergences  in  probative  methods  by  which  peculiar  evidence  may 
sustain  an  indictment  for  certain  offenses  or  support  a  traverse 
of  its  recitals.  The  common  incidents  of  "  Police  Court "  evidence 
tending  to  sustain  a  charge  of  disorderly  conduct,  thieving, 
vagrancy,  etc.,  are  presumptively  within  the  knowledge  of  the 
practitioner  after  a  reading  of  the  foregoing  text. 

But  in  order  to  sustain  a  conviction  for  the  more  serious  crimes 
the  Penal  Law  requires  a  high  degree  of  demonstration  as  to  the 
guilt  of  the  accused  before  it  will  venture  to  place  upon  him  a 
stigma  which  must  be  borne  for  life  and  frequently  transmitted 
to  unoffending  children.  Here  it  is  that  technical  rules  engraft 
themselves  upon  the  primary  requirements  of  the  law  and  impart 
an  element  of  doubt  and  complexity  to  evidentiary  procedure 
that  it  is  the  province  of  this  subdivision  to  dispel.  The  attempt 
is  to  deal  intelligently  with  such  phases  of  the  Law  of  Evidence 
as  are  generally  regarded  as  exceptional — with  rules  of  specialized 
and  unusual  application — that  are  far  more  perplexing  to  both 
bench  and  bar  than  any  questions  within  the  range  of  either  plead- 
ing or  practice. 

C97 


CHAPTER  LI. 

FALSE  PRETENSES. 

§  434.   Tlie  Offense  Defined. 

435.  What  must  be  Prove!. 

436.  Must  Relate  to  an  Existing  Fact. 

437.  Intent  to  Defraud  must  be  Shown. 

438.  Something  of  Value  must  be  Obtained. 

439.  Similar  Frauds  may  also  be  Shown. 

440.  Evidence  of  Ability  to  Repay  the  Amount  Obtained  Im- 

material. 

441.  Pretense  must  be  Such  as  to  Mi  si  pad  Men  of  Ordinary 

Prudence — Contradiction  in  the  Decisions. 

442.  Distinction  between  Larceny  and  False  Pretenses. 
44:5.  Examination  of  the  English  Rule. 

444.   Partial  Review  of  the  Authorities. 

§  434.  The  Offense  Defined. — False  pretenses  consist  in  per- 
-suading  the  owner  to  part  with  his  property  by  the  utterance  of 
a  conscious  falsehood  by  the  party  making  the  false  pretenses  or 
by  the  offender's  simulation  of  a  character  that  does  nut  belong  to 
it  or  by  representing  himself  to  be  in  a  condition  he  knows  he 
does  not  really  occupy.  People  v.  Ifaynes^  14  Wend.  546,  28 
Am.  Dec.  530. 

A  false  pretense  is  a  false  statement  about  a  past  or  present 
fact,  and  not  a  mere  promise,  opinion,  or  statement  of  something 
to  take  place.  Opinion  as  to  quantity,  quality,  value,  amount, 
etc.,  do  not  constitute  the  crime.     Browne,  Crim.  L.  5". 

§  435.   What  must  he  Proved. — To  constitute  the  offense 

charged,  four  thing-  must  concur,  and  four  distinct  averments 
must  be  shown  by  the  evidence,  viz: 

1.  An  intent  to  defraud; 

2.  Actual  fraud  committed; 

699 


700  LAW    OF    EVIDENCE    IN    CRIMINAL    CASES. 

3.  False  pretenses  for  the  purpose  of  perpetrating  fraud  ;  and 
it  must  further  appear, 

4.  That  the  fraud  was  accomplished  by  means  of  the  false  pre- 
tenses made  use  of;  and  this  must  be  the  cause  which  induced  the 
owner  to  part  with  his  property.  Com.  v.  Drew,  19  Pick.  184; 
People  v.  Wasservogle,  77  Cal.  173.  State  v.  Matthews,  10  L.  R. 
A.  308,  44  Kan.  596;  People  v.  Jordan,  66  Cal.   10;  People  v. 

Wakely,  62  Mich.  297;  2  Bishop,  Crim.  Proc.  §  163. 

Tested  by  the  above  rules,  which  seem  to  be  supported  by  rea- 
son and  authority,  it  must  appear  that  some  one  has  been  defrauded 
to  insure  a  conviction.     State  v.  Clark,  46  Kan.  65. 

Under  indictments  for  this  offense  it  is  competent  for  the  com- 
monwealth to  introduce  evidence  of  other  false  pretenses  made  at 
or  about  the  same  time  with  the  one  charged,  as  tending  to  estab- 
lish the  guilty  intent — an  ingredient  in  every  crime  that  must 
always  be  proved.  People  v.  Wakely,  62  Mich.  298;  Strong  v. 
State,  $6  Ind.  208,  44  Am.  Kep.  292;  State  v.  Jamison,  74  Iowar 
613;  Com.  v.  Stone,  4  Met.  43;  People  v.  Henssler,  48  Mich.  49; 
Thompson  v.  Rose,  16  Conn.  71,  41  Am.  Dec.  121;  State  v.  My- 
ers, 82  Mo.  558,  52  Am.  Rep.  389;  State  v.  Bayne,  88  Mo.  604;, 
Com.  v.  Blood,  141  Mass.  571;  Cowan  v.  State,  22  Neb.  520; 
State  v.Sarony,  95  Mo.  349;  State  v.  Long,  103  Ind.  481;  Mayer 
v.  People,  80  K  Y.  364;  Trogdon  v.  Com.  31  Gratt.  S62;  Rex 
v.  Roberts,  1  Campb.  399;  Weyman  v.  People,  4  Hun,  511;  Rex 
v.  Ellis,  6  Barn.  &  C.  145;  BielschofsTcy  v.  People,  3  Hun,  40; 
Copperma/n  v.  People,  56  N.  Y.  591;  Rex  v.  Davis,  6  Car.  &  P. 
177;  Com.  v.  Tuckerman,  10  Gray,  179;  Rex  v.Wylie,  1  Bos.  & 
P.  94;  Hitchcock's  Case,  6  City  Hall  Rec.  43;  Reg.  v.  Dossett,  2 
Car.  &  K.  306;  Com.  v.  Eastman,  1  Cush.  1S9,  48  Am.  Dec.  596; 
Com.  v.  Choate,  105  Mass.  459;  Com.  v.  Coe,  115  Mass.  481;  Rex 
v.  Dunn,  1  Mood.  C.  C.  146;  Com.  v.  Stone,  4  Met.  43;  Rex  v. 
rAA/y,  2  Den  C.  C.  264;  Com,  v.  Price,  10  Gray,  472,  71  Am. 
Dec.  668;  Reg.  v.Forster,l  Dears.  C.  C. 456;  Com,  v.  Ferrigan, 
44  Pa.  386;  Bottomley  v.  United  States,  1  Story,  135;  People  v. 

Wood,  3  Park.  Crim.  Pep.  681;  State  v.  Williams,  2  Rich.  L.  418; 
Stout  v.  I}loj>Ic,  4  Park.  Crim.  Rep.  71;  Ilw/rf  v.  United  States, 
41  U.  S.  10  Pet.  360,  10  L.  ed.  994;  Reg.  v.  Gcering,  18  L.  J.  M. 
C.  215;  Reg.  v.  Richardson,  8  Cox,  C.  C.  448;  7?<°j/.  v.  Francis, 
12  Cox,  C.  C.  6Y1\  Reg.  v.  ta^r,  L.  R.  1  Q.  B.  19. 

In  Com.  v.  Stoio  ,  supra,  Shaw,  Ch.  J.,  speaking  of  this  kind  of  evi- 


FALSE    PRETENSES.  701 

denee,  said:  "This  is  an  exception  to  the  general  rule  of  evidence. 
But  it  must  be  considered  that  it  is  to  prove  a  fact  not  provable 
by  direct  evidence,  that  is,  a  guilty  knowledge  and  purpose  of 
mind,  which  can  rarely  be  proved  by  admissions  or  declarations, 
and  can  in  general  be  proved  only  by  external  acts  and  conduct. 
The  case  is  strictly  analogous  to  the  rule  in  relation  to  the  proof 
of  scienter  on  a  charge  of  passing  counterfeit  bills  or  coins." 

An  indictment  charging  false  pretenses  made  to  a  certain  per- 
son, and  money  paid  by  him  on  the  strength  thereof,  is  supported 
by  proof  that  the  false  representations  were  made  to  an  agent  who 
communicated  the  same  to  the  principal.  Com.  v.  Call,  21  Pick. 
521,  32  Am.  Dec.  284;  Roberts  v.  People,  9  Colo.  45$;  1  Whart. 
Am.  Crim.  L.  §  598;  2  Whart.  Am.  Crim.  L.  §§  2145,  2140. 

To  constitute  the  crime  of  obtaining  property  by  false  pretenses 
under  the  statute,  two  things  are  essential,  viz:  a  false  representa- 
tion as  to  an  existing  fact  and  a  reliance  upon  that  representation 
as  true.     People  v.  Tomjpkins,  1  Park.  Crim.  Eep.  224. 

Every  species  of  fraudulent  pretense  is  included  within  the 
comprehensive  terms  employed  by  the  various  statutes  in  defining 
this  offense.  It  does  not  matter  what  the  nature  of  the  transac- 
tion is,  if  money  be  obtained  in  the  manner  and  by  the  means 
indicated  in  the  statute.  So  long  as  there  is  a  false  representation 
designedly  made,  with  the  intent  to  cheat  and  defraud,  it  is  enough 
to  satisfy  the  requirement  of  the  law.  It  is  true  that  it  must  be 
a  representation  which  affects  and  influences  the  mind  of  the 
prosecutor  and  induces  him  to  sign  the  instrument,  or  to  part 
with  his  money  or  property,  and  to  surrender  it  by  reason  there- 
of. The  question  to  be  determined  is,  whether  the  false  pretense 
charged  and  proven  is  of  such  a  character  that  it  is  capable  of 
defrauding  and  that  the  prosecutor  could  have  been  deceived  by 
it.  In  some  of  the  cases  decided  in  New  York  as  well  as  the 
English  statute  which  is  of  a  similar  import  and  substantially  the 
same  as  the  first  named  statute,  there  was  some  hesitation  as  to 
whether  it  should  not  be  interpreted,  having  in  view  the  restric- 
tion which  existed  at  common  law  in  cases  of  a  similar  character. 
But  this  disposition  ha-  yielded  to  a  more  just  construction  so  as 
to  give  full  force  and  effect  to  the  statute  and  to  furnish  protec 
tion  to  those  who,  from  undue  confidence  in  others,  or  inexperi- 
ence, are  liable  to  become  the  victim-  of  dishonest,  artful  and 
designing  dealers.     This  interpretation  is  more  consistent  with  the 


702  LAW    OF    EVIDENCE    IN    CRIMINAL    CASES. 

intention  of  the  law  makers  and  the  object  in  contemplation 
which  was  evidently  to  make  a  party  responsible  criminally  for 
any  false  representation  of  a  material  fact  designedly  made  with 
a  fraudulent  purpose  in  view  and  which  did  have  the  effect  to 
cheat  and  defraud  another.  This  rule  has  generally  been  upheld 
in  the  decisions  with  the  exception  perhaps  of  People  v.  Williams, 
4  Hill,  9,  40  Am.Dec.  258,  which  may  be  regarded  as  tending  in 
a  different  direction,  although  the  precise  point  which  now  arises 
was  not  in  that  case.  The  later  cases  of  People  v.  Crissie,  4  Denio> 
525;  Thomas  v.  People,  34  N.  Y.  351;  People  v.  Sully,  5  Park. 
Crim.  Eep.  143;  People  v.  Oyer  ds  Terminer  Ct.  83  K  Y.  436, 
are  in  a  contrary  direction.  Watson  v.  People,  87  N.  Y.  561,  41 
Am.  Eep.  397. 

The  English  decisions  fully  sustain  the  doctrine  that  it  is  enough 
that  the  pretense  was  made  knowingly  and  the  money  obtained 
thereby  with  the  intent  to  defraud  and  that  the  pretense  was  false 
to  the  knowledge  of  the  person  making  it.  Hamilton  v.  Peg.  9 
Q.  B.  271;  Reg.  v.   Wickham,  10  Ad.  &  El.  34. 

Judge  Morton  in  an  early  Massachusetts  case  outlines  the  pre- 
vailing rules  that  govern  the  production  of  evidence  in  actions 
for  false  pretenses,  I  excerpt  from  his  opinion  in  Com.  v.  Drew, 
19  Pick.  179. 

What  is  a  false  pretense,  within  the  meaning  of  the  statute  ? 
It  may  be  defined  to  be  a  representation  of  some  fact  or  circum- 
stance, calculated  to  mislead,  which  is  not  true.  To  give  it  a 
criminal  character  there  must  be  a  scienter  and  a  fraudulent  in- 
tent. Although  the  language  of  the  state  is  very  broad,  and  in  a. 
loose  and  general  sense,  would  extend  to  every  misrepresentation, 
however  absurd  or  irrational  or  however  easily  detected;  yet  we 
think  the  true  principles  of  construction  render  some  restriction 
indispensable  to  its  proper  application  to  the  principles  of  crimi- 
nal law  and  to  the  advantageous  execution  of  the  statute.  We 
do  not  mean  to  say  that  it  is  limited  to  cases  against  which  ordi- 
nary skill  and  diligence  cannot  guard;  for  one  of  its  principal 
objects  is  to  protect  the  weak  and  credulous  from  the  Males  and 
stratagems  of  the  artful  and  cunning;  but  there  must  be  shim.' 
limit,  and  it  would  seem  to  be  unreasonable  to  extend  it  to  those 
who,  having  the  means  in  their  own  hands,  neglect  to  protect 
themselves.  It  may  be  difficult  to  draw  a  precise  line  of  dis- 
crimination applicable  to  every  possible  contingency,  and  we  think 


FALSE    PRETENSES.  703 

it  safer  to  leave  it  to  be  fixed  in  each  case  as  it  may  occur.  Young 
v.  Rex,  3  T.  R.  98;  2  East,  P.  C.  828. 

It  is  not  the  policy  of  the  law  to  punish  criminally  mere  private 
wrongs.  And  the  statute  may  not  regard  naked  lies,  as  false 
pretenses.  It  requires  some  artifice,  some  deceptive  contrivance, 
which  will  be  likely  to  mislead  a  person  or  throw  him  off  his 
guard.  He  may  be  weak  and  confiding  and  his  very  imbecility 
and  credulity  should  receive  all  practical  protection.  But  it 
would  be  inexpedient  and  unwise  to  regard  every  private  fraud 
as  a  legal  crime.  It  would  be  better  for  society  to  leave  them  to 
civil  remedies.  Rex  v.  Goodhall,  Russ.  &  R.  461;  Roscoe,  Crim. 
Ev.  (2d  ed.)  419. 

The  pretense  must  relate  to  past  events.  Any  representation 
or  assurance  in  relation  to  a  future  transaction,  may  be  a  promise 
or  covenant  or  warranty,  but  cannot  amount  to  a  statutory  false 
pretense.  They  afford  an  opportunity  for  inquiring  into  their 
truth,  and  there  is  a  remedy  for  their  breach,  but  it  is  not  by  a 
criminal  prosecution.  StuyvesanOs  Case,  4  City  Hall  Rec.  156; 
Rex  v.  Codrington.  1  Car.  &  P.  661;  Roscoe,  Crim.  Ev.  (2d  ed.) 
422.  The  only  case.  Young  v.  Rex,  3  T.  R.  98,  which  has  been 
supposed  to  conflict  with  this  doctrine,  clearly  supports  it. 

In  3  Archibold,  Criminal  Practice  &  Pleading,  467,  it  is  said  : 
"In  order  to  convict  a  man  of  obtaining  money  or  goods  by  false 
pretenses,  it  must  be  proved  that  they  were  obtained  under  such 
circumstances  that  the  prosecutor  meant  to  part  with  the  right  to 
the  property  in  the  thing  obtained,  and  not  merely  with  the  pos- 
session of  it."      State  v.  AncL  rson,  47  Iowa,  112. 

It  is  not  necessary  that  the  proof  should  be  direct  but  such  evi- 
dence must  be  given  and  such  facts  established  as  tend  legitimately 
and  necessarily  to  show  the  existence  of  such  intent.  People  v. 
Pmclcney,  51  N.  Y.  S.  R.  310;  Lesser  v.  People,  73  N.  Y.  78. 

The  gist  of  the  offense  is  that  the  false  pretense  must  be  of  a 
past  event,  or  of  some  fact  alleged  to  have  a  present  existence, 
and  not  of  something  to  happen  hereafter.  Mere  falsification  is 
not  sufficient  to  maintain  an  indictment  for  this  offense.  Jones 
v.  United  States,  5  Cranch,  C.  C.  653;  Ranney  v.  J ^eople,  22  N. 
Y.  413;  Keller  v.  State,  51  Ind.  Ill;  Lesser  v.  People,  L2  I lun, 
668;  State  v.  Mills.  17  Me.  211;  State  v.  Rowley,  12  Conn.  L01; 
Com.  v.  Drew,  19  Pick.  17'.). 

§436.  Must  Relate  to  ;in  Existing    Fact.-  The  frequency 


704  LAW    OF    EVIDENCE    IN- CRIMINAL    CASES. 

with  which  indictments  for  this  offense  are  found  and  tried,  will 
excuse  an  extended  examination  of  the  principles  that  must  un- 
derlie and  characterize  the  prosecution  or  the  defense,  or  should 
govern  the  juridical  view  of  the  crime,  when  in  the  charge  to  the 
jury  it  becomes  necessary  to  properly  outline  its  characteristics — 
or  suggest  the  implications  the  evidence  necessarily  involves,  or 
the  nature  and  scope  of  the  facts  necessary  to  be  shown  in  order 
to  sustain  a  conviction. 

A  very  recent  case  decided  by  the  supreme  court  of  Pennsyl- 
vania, well  states  the  prevailing  view  in  that  jurisdiction.  And 
after  a  critical  examination  of  various  statutory  regulations  on  the 
subject,  the  phraseology  of  the  Pennsylvania  law  is  found  to  be 
similar  in  import  with  that  employed  in  several  other  instances. 
Under  these  circumstances,  I  shall  consider  myself  warranted  in 
citing  a  somewhat  extended  extract  from  the  opinion  of  Mr.  Jus- 
tice Paxson : 

"The  question  is  whether  the  indictment  sets  forth  an  indicta- 
ble offense.  It  contains  two  counts,  in  each  of  which  the  defend- 
ant is  charged  with  cheating  by  false  pretenses.  The  particular 
act  alleged  was  the  procuring  of  the  prosecutor's  indorsement  of 
the  defendant's  promissory  note,  and  the  false  pretense  charged 
consisted  in  his  representing  that  he  would  use  the  note  so  in- 
dorsed to  take  up  and  cancel  another  note  then  about  maturing, 
ami  upon  which  the  prosecutor  was  liable  as  indorser.  In  other 
\\(  ads,  the  note  was  given  in  renewal  of  another  note  of  like  amount, 
and  the  indictment  charges  that  the  defendant,  instead  of  using 
it  for  this  purpose,  procured  it  to  be  discounted  and  used  a  portion 
of  the  proceeds  for  other  purposes. 

"A  false  pretense,  to  be  within  the  statute,  must  be  the  assertion 
of  an  existing  fact,  not  a  promise  to  perform  some  act  in  the  fut- 
ure. The  man  who  asserts  that  he  is  the  owner  of  a  house  states 
a  fact,  and  one  that  is  calculated  to  give  him  a  credit.  But  a  mere 
failure  to  keep  a  promise  is  another  and  very  different  affair. 
That  occurs  when  a  man  fails  to  pay  his  note.  It  is  true  Chief 
Justice  Gibson  doubted,  in  Com.  v.  Burdick,  v2  Pa.  164,  44  Am. 
Dec  186,  whether  every  naked  lie  by  which  a  credit  has  been 
gained  is  not  a  false  pretense  within  the  statute.  This  doubt  has 
run  its  course,  and  has  long  since  ceased  to  disturb  the  criminal 
law  of  this  state.     .     .     . 


FALSE    PRETENSES.  705 

"In  the  case  in  hand  there  was  no  assertion  of  an  existing  fact, 
nor  was  there  anything  done  by  which  even  a  credit  was  given. 
The  credit  had  been  obtained  when  the  original  note  was  indorsed; 
the  present  note  was  indorsed  in  lieu  of  and  for  the  purpose  of 
taking  up  the  original;  the  failure  to  use  it  for  such  purpose  was 
certainly  a  dishonest  act  on  the  part  of  the  defendant,  but  we  do 
not  think  it  punishable  under  the  statute  defining  false  pretenses." 
Com.  v.  Moore  (Pa.)  3  Crim.  L.  Mag.  839. 

False  pretense  relates  not  merely  to  the  general  mode  of  deal- 
ing of  him  who  makes  it,  but  the  nature  of  the  transation  in 
which  he  is  then  engaged.  If  he  is  the  proprietor  of  a  retail 
store,  and  buys  goods  in  the  usual  way,  to  be  sold  therein,  he  is 
■"  carrying  on  business  and  dealing  in  the  regular  course  of  trade;" 
but  if  he  buys  goods  to  be  carried  away,  and  sold  at  wholesale  for 
half  their  value,  he  is  not  "dealing  in  the  ordinary  course  of 
trade."  The  representation  of  his  intention  in  regard  to  the  dis- 
position of  the  property  may  be  an  important  element  in  the  pre- 
tense that  he  is  dealing  in  the  ordinary  course  of  trade.  Indeed, 
it  may  be  the  characteristic  and  distinguishing  feature  of  the 
false  pretense.  The  act  of  purchase  in  its  external  features  is  the 
same  whether  it  is  in  the  ordinary  course  of  dealing  or  a  wroner- 
ful  procurement  of  property  with  intent  to  defraud.  The  inten- 
tion of  the  purchaser  in  reference  to  the  disposition  of  the  goods 
makes  it  the  one  or  the  other, and  his  statement  of  that  intention, 
in  connection  with  a  representation  that  he  is  the  proprietor  of  a 
retail  store,  may  be  in  itself  a  statement  that  he  is  dealing  in  the 
ordinary  course  of  trade,  or  that  he  is  not,  according  as  he  says 
that  he  expects  to  sell  the  goods  in  his  store  in  the  usual  way.  or 
that  he  intends  to  devote  them  to  a  different  kind  of  use.  It 
must  be  a  statement  of  a  fact,  and  not  a  promise,  or  a  mere  ex- 
pression of  a  purpose.  Com  v.  Walker,  10S  Mass.  309.  To  'in- 
stitute the  offense  it  is  not  necessary  that  the  pretense  should  be 
made  in  the  express  words  set  out  in  the  statute.  It  is  enough  it 
it  is  plainly  and  intelligibly  made  in  any  form  of  words.  Com.  v. 
Brew,  153  Mass.  5s^,  13  Crim.  L.  Mag.  736. 

It  must  clearly  appear  in  evidence  that  the  accused  obtained 
the  title,  together  with  the  possession  of  the  complainant's  prop- 
erty, by  means  of  false  pretense,  a-  it  is  well  settled  that  mere 
possession,  in  the  absence  of  any  intent  on  the  pari  of  the  owner 
to  renounce  the  title,  constitutes  a  different  offense.  State  v. 
45 


706  LAW    OF    EVIDENCE    IN    CRIMINAL    CASES. 

Kube,  20  Wis.  217,  91  Am.  Dec.  390;  State  v.  Vickery,  19  Tex 
326;  Zink  v.  People,  77  K  Y.  114,  33  Am.  Kep.  589;  Glims  v 
State,  43  Tex.  494;  People  v.  Rae,  66  Cal.  423,  56  Am.  Kep.  102 
Com.  v.  Eichellerger,  119  Pa.  254;  &mtYA  v.  People,  53  N.  Y 
111,  13  Am.  Rep.  474;  State  v.  Hall,  76  Iowa,  85;  Ross  v.  Peo 
/?&,  5  Hill,  294;  Miller  v.  Com.  78  Ky.  15,  39  Am.  Rep.  194; 
March  v.  State,  117  Ind.  547. 

At  tlie  trial  of  an  indictment  against  a  person  charged  with 
obtaining  money  by  false  pretenses,  letters  written  by  him  tend- 
ing to  show  that  he  committed  the  crime,  are  admissible  in  evi- 
dence against  him,  although  they  also  tend  to  show  that  he  com- 
mitted other  crimes.     Com.  v.  Blood,  141  Mass.  571. 

And  if  there  is  any  evidence  in  support  of  an  allegation  in  an 
indictment  there  is  no  variance  between  the  allegation  and  the 
proof,  although  the  evidence  is  contradictory;  and,  if  the  question 
of  variance  is  submitted  to  the  jury  under  proper  instructions, 
the  defendant  has  no  ground  of  exception.  Com.  v.  Blood, 
supra. 

The  mere  statement  of  an  intention  to  do  a  certain  thing,  al- 
though made  to  induce  the  sale  and  although  the  buyer  had  not 
the  intention  stated  is  not  a  false  pretense  within  the  statute. 
Ranney  v.  People,  22  1ST.  Y.  413;  Rex  v.  Goodhall,  Russ.  &  R. 
461;  Rex  v.  Douglas,  Mood.  C.  C.  462;  Scott  v.  People,  62  Barb. 
62;  Reg  v.  Lee,  9  Cox,  C.  C.  304;  Rex  v.  Dale,  7  Car.  &  P.  352; 
People  v.  Tompkins,  1  Park.  Crim.  Rep.  224;  Com.  v.  Fisher,  9' 
Phila.  594;  Johnson  v.  State, 41  Tex.  65;  Reg.  v.  Archer,  Dears. 
C.  C.  453,  1  Jur.  N.  S.  479;  Reg.  v.  Bates,  3  Cox,  C.  C.  203,  204;. 
Rt  g.  v.  Johnston,  2  Mood.  C.  C.  254;  State  v.  Magee,  11  Ind. 
155;  Glackan  v.  Com.  3  Met.  (Ky.)  233;  People  v.  Getchell,  6 
Mich.  496;  Cowen  v.  P,  qple,  14  111.  348;  Com.  v.  Frey,  50  Pa. 
245;  2  Russell,  Crimes  (6th  ed.)  300;  Bishop,  Crim.  L.  (5th  ed.) 
419,  479. 

The  indictment  must  show  what  the  false  pretenses  were,  and 
state  them  with  reasonable  certainty  and  precision.  Rex  v. 
Mason,  1  Leach,  C.  C.  487;  Reg.  v.  Henshaw,  Leigh  &  C.  444. 
It  is  not  necessary  that  the  prosecution  should  prove  them  all. 
State  v.  Mills,  17  Me.  211;  Rex  v.  Hill,  Russ.  &  R.  190. 

By  reference  to  Cowen's  Criminal  Digest  at  page  320,  we  find 
it  stated  that  "a  false  pretense  must  relate  to  an  existing  fact,  any 
representation  as  to  what  will  or  will  not  happen  cannot  be  con- 


FALSE    PRETENSES.  707 

sidered  as  a  false  pretense.  So  that  if  a  man  obtains  goods  by 
promising  to  pay  cash  for  them,  or  to  pay  for  them  at  a  future 
time,  or  gives  his  note  for  them  with  assurances  that  it  will  be  paid 
at  its  maturity,  when  at  the  same  time  he  does  not  intend  to  pay, 
these  are  false  promises  because  there  is  no  pretense  that  any  fact 
exists;  there  is  no  representation  as  to  what  is  then  untrue."  And 
again  he  says :  "As  a  general  rule,  there  must  be  a  false  repre- 
sentation by  words,  written  or  spoken  by  the  accused,  or  by  some 
one  for  him,  to  which  he  gives  his  assent.  A  mere  false  show  or 
appearance,  however  specious  or  successful  it  may  be,  will  not 
support  a  prosecution  under  the  statute.  The  false  pretense  must 
not  only  be  a  misrepresentation  as  to  an  existing  fact,  but  it  must 
be  a  willful  misrepresentation;  or,  in  other  words,  the  party  must 
know  that  he  is  making  a  false  misrepresentation,  and  it  must  be 
so  alleged  in  the  indictment.  .  .  .  The  false  pretense  must 
be  one,  to  which  the  jury  may  believe  the  person  defrauded  might 
and  actually  did  give  credit."  And  again  he  says,  at  page  320 : 
"  An  allegation  by  speech  is  necessary  to  constitute  false  pre- 
tense." And  again  :  "  No  false  pretense  made  after  the  delivery 
of  goods,  can  support  an  indictment  for  obtaining  such  goods  by 
false  pretenses.  Then,  also,  pretenses  must  be  predicated  on  some 
matter  or  thing  pretended  then  to  be  in  existence,  but  which  in 
truth  was  not,"  People  v.  Conger,  1  "Wheel.  Crim.  Cas.  448; 
Allen's  Case,  3  City  Hall  Kec.  118;  Ranney  v.  People,  22  X.  Y. 
413;  Conger's  Case,  4  City  Hall  Eec.  05;  1  Colby,  Crim.  L.  501- 
503. 

In  2  Russell  On  Crimes  at  page  288,  it  is  said  :  "Barely  asking 
another  for  a  sum  of  money  is  not  sufficient,  but  some  pretense 
must  be  used  and  that  pretense  false,  and  the  intent  is  necessary 
to  constitute  the  crime." 

Wharton  in  his  work  on  Criminal  Law  (7th  ed.)  says :  "  There 
must  be  always  something  to  show  adequately  that  a  party  de- 
frauded was  induced  to  part  with  his  property  by  reiving  upon 
the  truth  of  the  alleged  statements."  Section  21<i2.  And  again, 
at  section  2113,  he  says:  In  certain  cases  "the  conduct  and  acts 
of  the  party  will  be  sufficient,  without  any  verbal  assertion. 
Where  a  man  assumed  the  name  of  another  to  whom  money  was 
due,  required  to  be  paid  by  a  genuine  instrument,  it  was  held  in- 
dictable. And  where  a  person  at  Oxford,  who  was  not  a  member 
of  the  university,  went  for  the  purpose  of  fraud,  wearing  a  com- 


708  LAW    OF    EVIDENCE    IN    CRIMINAL    CASES. 

moner's  cap  and  gown  and  obtained  goods,  it  was  held  within  the 
act  though  not  a  word  passed.  And  so  where  the  defendant,  an 
employe  in  a  hospital,  wrote  to  a  manager  for  linen,  not  saying 
in  words  that  it  was  for  the  hospital,  but  knowingly  making  that 
impression  on  the  manager's  mind."  But  in  all  of  these  eases  it 
was  by  means  of  false  token  or  writing. 

Bishop,  in  his  work  upon  Criminal  Procedure,  vol.  2,  §  165, 
says  that  the  allegation  in  the  indictment  that  the  money  or  other 
thing  was  obtained  by  means  of  false  pretense,  which  are  the 
statutory  words,  is  not  sufficient.  The  allegation  must  state  what 
the  pretenses  were.     People  v.  Moore,  37  Hun,  84. 

Mere  silence  or  suppression  of  the  truth,  a  mere  withholding  of 
knowledge  upon  which  another  may  act,  is  not  sufficient  to  con- 
stitute false  pretenses.     People  v.  Baker,  96  N.  Y.  340. 

In  prosecutions  for  false  pretenses  the  evidence  must  show  that 
the  pretense  complained  of  relates  to  a  past  event,  or  to  some 
fact  at  present  existing;  and  not  to  something  that  may  happen  in 
the  future.  And  a  false  promise  to  do  some  particular  act  at 
some  future  time  is  not  sufficient.  Burrow  v.  State,  12  Ark.  65; 
Scarlett  v.  State,  25  Fla.  717;  Keller  v.  State,  51  Ind.  11;  Re  Sny- 
der, 17  Kan.  542;  State  v.  De  Lay,  11  West.  Eep.  443,  93  Mo. 
98;  State  v.  Magee,  11  Ind.  154;  Ranney  v.  People,  22  N.  Y.  413; 
State  v.  Green,  7  Wis.  676;  Com.  v.  Brew,  19  Pick.  179;  Dilling- 
ham v.  Stale,  5  Ohio  St.  280;  Johnson  v.  State,  41  Tex.  65;  State 
v.  Rowley,  12  Conn.  101;  Lesser  v.  People,  12  Hun,  668;  Reg.  v. 
Pickup,  10  L.  C.  J.  310;  Reg.  v.  Berths,  13  U.  C.  C.  P.  607; 
Reg.  v.  Giles,  10  Cox,  C.  C.  85;  Rex  v.  Young,  3  T.  R.  98;  Reg. 
v.  Lee,  Leigh  &  C.  309;  Reg.  v.  Jennison,  Leigh.  &  C.  157;  Reg. 
v.  West,  8  Cox,  C.  C.  12;  Rex  v.  Asterly,  7  Car.  &  P.  191;  Rex 
v.  Parker,  7  Car.  &  P.  825;  Reg  v.  Gemmell,  26  IT.  C.  Q.  B.  314; 
Reg.  v.  Crab,  5  U.  C.  L.  J.  K  S.  21,  11  Cox,  C.  C.  85;  Desty, 
Grim.  L.  5S1. 

§  437.  Intent  to  Defraud  must  be  Shown. — To  constitute 
the  offense,  there  must  have  been  an  intent  to  defraud,  in  connec- 
tion with  a  false  representation  calculated  to  mislead;  it  is  an 
rial  part  of  the  offense.  Com.  v.  Drew,  19  Pick.  179;  Low 
v.  /A'//,  47  K  Y.  104;  O'Connor  v.  State,  30  Ala.  9;  Fay  v.  Com,. 
28  Gratt.  912;  Brown  v.  People.  16  Hun,  535;  Com.  v.  Jeffries, 
7  Allen.  548,  83  Am.  Dec.  712;  Anahle  v.  Com.  24  Gratt.  570; 
T       I      v.  Com.  31  Gratt.  872.     See  2  Bishop,  Crim.L.  (6th  ed.) 


FALSE    PJBETENSES.  709 

§  471;  "Whart.  Am.  Crim.  L.  (8th  ed.)  §  1184;  Desty,  Am.  Crim. 
L.  588. 

The  essence  of  the  crime  of  obtaining  property  under  false  pre- 
tenses is  the  intent  to  deceive  and  defraud;  and  it  is  therefore 
competent  to  show  that  defendant  acted  only  under  a  misappre- 
hension of  the  facts,  and  not  with  a  deliberate  fraudulent  intent. 
State  v.  Garris,  98  X.  C.  738. 

It  is  a  well  settled  and  rational  rule  that  the  false  pretenses,  in 
order  to  sustain  an  indictment,  must  be  such  that,  if  true,  they 
would  naturally  and  according  to  the  usual  operation  of  motives 
upon  the  minds  of  persons  of  ordinary  prudence,  produce  the 
alleged  results  or  in  other  words,  that  the  act  done  by  the  person 
defrauded  must  be  such  as  the  apparent  exigency  of  the  case 
would  directly  induce  an  honest  and  ordinarily  prudent  person  to 
do,  if  the  pretenses  were  true.  People  v.  Stetson,  4  Barb.  151. 
Hence,  in  order  to  convict  a  man  of  obtaining  money  or  goods, 
etc.,  by  false  pretenses,  it  must  be  proved  that  they  were  obtained 
under  such  circumstances  that  the  prosecutor  meant  to  part  with 
his  right  of  property  in  the  thing  obtained,  and  not  merely  with 
the  possession  of  it;  if  the  prosecutor  part  with  the  possession  only, 
and  not  the  right  of  property,  we  have  seen  that  the  offense  is 
larceny,  and  not  an  obtaining  of  the  property  by  false  pretenses. 
2  Archb.  Crim.  Pr.  &  PL  467. 

The  intent  to  defraud  is  the  intent,  by  the  use  of  such  false 
means,  to  induce  another  to  part  with  his  possession  and  confide 
it  to  the  defendant,  when  he  would  not  otherwise  have  ('one  so. 
Neither  the  promise  to  repay,  nor  the  intention  to  do  so,  will  de- 
prive the  false  and  fraudulent  act  in  obtaining  it  of  its  criminal- 
ity. Com.  v.  Tenney,  97  Mass.  50;  Com.  v.  Mason,  105  .Mass. 
163.  The  offense  is  complete  when  the  property  or  money  lias 
been  obtained  by  such  means;  and  would  not  be  purged  by  sub- 
sequent restoration  or  repayment.  Evidence  of  ability  to  make 
the  repayment  is  therefore  immaterial  and  inadmissible.  ( 'om.  v. 
Coe,  115  Mass.  481. 

In  order  to  constitute  the  crime  of  obtaining  property  by  false 
pretenses,  it  is  not  sufficient  to  prove  the  false  pretenses,  and  that 
property  was  obtained  thereby;  but  the  evidence  must  show  that 
the  false  pretenses  were  made  with  intent   to  cheat  and  defraud 

another.      Another  essential  element,  of  the  crime,  which  the  ■ - 

pie  in  all    cases    of   this    kind    are  bound    to   establish,  is  that  the 


710  LAW    OF    EVIDENCE    IN    CRIMINAL   CASES. 

money  was  paid,  or  the  property  parted  with  in  reliance  upon  and 
under  the  inducement  of  the  false  pretenses  alleged.  People  v. 
Baker,  90  K  Y.  340;  Scott  v.  People,  02  Barb.  71;  Reg.  v.  Gard- 
ner, 1  Dears.  &  B.  C.  C.  43;  Therasson  v.  People,  82  K  Y.  240; 
Dilleber  v.  Home  Ins.  Co.  69  N.  Y.  256;  Ranney  v.  People,  22 
IS'.  V.  417;  People  v.  Tompkins,  1  Park.  Criin.  Rep.  239;  People 
v.  Conger,  1  Wheel.  Crim.  Cas.  448;  People  v.  Blanehard,  90  N. 
Y.  314. 

A  representation,  though  false,  is  not  within  the  statute 
against  obtaining  property,  etc.,  by  false  pretenses,  unless  cal- 
culated to  mislead  persons  of  ordinary  prudence  and  caution. 
People  v.  Williams,  4  Hill,  9,  40  Am.  Dec.  258. 

Upon  the  trial  of  an  indictment  for  obtaining  goods  by  means 
of  false  representations,  it  is  not  necessary  that  the  prosecution 
should  prove  all  the  false  representations  alleged  in  the  indict- 
ment. Where  representations  set  forth  in  the  indictment  are 
proved,  the  sense  in  which  they  were  used,  and  what  was  designed 
to  be,  and  was  understood  from  them,  are  questions  for  the  jury. 
An  indictment  for  false  pretenses  may  be  founded  upon  an 
assertion  of  an  existing  intention,  although  it  did  not  in  fact  exist; 
there  must  be  a  false  representation  as  to  an  existing  fact.  Peo- 
ple v.  Blanehard,  90  N.  Y.  314. 

In  order  to  justify  a  conviction  upon  the  trial  of  an  indictment 
for  false  pretenses,  it  must  appear  that  the  prosecutor  parted  with 
his  property,  or  signed  the  written  instrument,  as  the  case  may 
be,  by  reason  of  some  of  the  pretenses  laid  in  the  indictment,  or 
if  not  solely  by  reason  of  such  pretenses,  that  they  materially  in- 
fluenced his  action.     Therasson  v.  People,  82  N.  Y.  238. 

So,  where  the  property  is  obtained  by  false  pretenses  as  to  sev- 
eral things,  and  the  prosecutor  establishes  as  a  fact  that  he  was 
induced  to  part  with  his  property  by  means  of  any  one  of  the 
false  inducements  made,  the  conviction  is  supported.  Com.  v. 
Morrill,  8  Cush.  571;  People  v.  Wahely,  02  Mich.  297;  State  v. 
Dunlap,  24  Me.  77;  State  v.  VorbacJc,  00  Mo.  168;  Cowen  v. 
People,  14  111.  348;  State  v.  Mills,  17  Me.  211;  People  v.  Blanch- 
ard,supraj  Beasley  v.  State,  59  Ala.  20. 

There  are  numerous  cases  in  the  books  of  indictments  under 
the  statutes  against  fraud  by  false  pretenses,  and  they  are  not  all 
agreed  in  principle  or  result.  Some  of  them  seem  to  require 
mure,  and  others  less,  of  art  or  contrivance  in  the  means  of  ac- 


FALSE    PRETENSES.  711 

complishing  the  fraud;  but,  according  to  all  of  them,  there  must 
be,  at  least,  a  direct  and  positive  false  assertion  as  to  some  exist- 
ing matter  by  which  the  victim  is  induced  to  part  with  his  money 
or  property.     Ranney  v.  People,  22  N.  Y.  413. 

§  438.  Something  of  Value  must  be  Obtained.— To  consti- 
tute the  offense,  something  of  value  must  be  obtained  by  means 
of  a  false  pretense  with  the  intent  to  defraud.  To  obtain  goods 
with  the  intent  to  defraud  is  not  enough.  It  must  be  accom- 
plished by  a  false  pretense.  "By  the  terms  of  the  statute  the 
pretense  must  be  false.  And  the  doctrine  undoubtedly  is,  that  if 
it  is  not  false,  though  believed  to  be  so  by  the  person  employing 
it,  it  is  insufficient,"  2  Bishop,  Crim.  L.  §  417;  State  v.  Asher,  50 
Ark.  427. 

§  439.  Similar  Frauds  may  be  also  Shown.— Where  goods 
have  been  obtained  by  means  of  fraudulent  representations,  it  has 
been  held  that  as  the  intent  is  a  fact  to  be  arrived  at,  it  is  compe- 
tent to  show  that  the  party  accused  was  engaged  in  other  similar 
frauds  about  the  same  time,  provided  that  the  transactions  are  so 
connected  as  to  time,  and  so  similar  in  other  relations,  that  the 
same  motive  may  reasonably  be  imputed  to  them  all.  Judge 
Daniels  in  Weyman  v.  People,  4  Hun,  511.  The  question 
whether  representations  mislead  is  one  of  fact  rather  than  law. 
People  v.  Long,  44  Mich.  299;  Thomas  v.  People,  34  N.  Y.  351. 
As  to  right  to  show  other  similar  representations  of  respondent, 
see  People  v.  Hennsler,  48  Mich.  49;  Ihill  v.  Naylor,  18  N.  Y. 
588,  75  Am.  Dec.  269;  Miller  v.  Barber,  66  N.  Y.  558;  Mayer 
v.  People,  80  N.  Y.  364;  Gary  v.  Hoiailing,  1  Hill,  311,  37  Am. 
Dec.  323. 

In  Com.  v.  Eastman,  1  Cnsh.  ISO,  48  Am.  Dec,  596,  the  de- 
fendants were  indicted  for  obtaining  goods  of  certain  persons  by 
false  pretenses.  Evidence  of  the  purchase  of  other  goods  from 
other  persons  was  held  competent  on  the  question  of  criminal  in- 
tent. Peg.  v.  Rosebuck,  Dears.  A:  1!.  C.  C.  24,  was  another  case 
of  false  pretenses.  The  false  pretense  was  that  a  chain,  pledged 
by  the  defendant  to  a  pawnbroker, was  silver.  Evidence  that  the 
defendant  a  few  days  afterwards  offered  a  similar  chain  to  another 
pawnbroker  was  held  admissible.  Reg.  v.  Francis,  1 1'  Cox,  C.  0. 
612;  Hitchcock's  Case,  6  City  Hall  Rec.  43;  Rex  v.  Parsons,  1 
W.  Bl.  392;    Rex  v.  Roberts,  1  Campb.  399.     Such  evidence  can- 


712  LAW    OF    EVIDENCE    IN    CRIMINAL    CASES. 

not  fail  to  mislead  a  jury,  and  it  will  be  assumed  that  it  did  so. 
Coleman  v.  People,  55  JS".  Y.  81.  ■ 

Where  upon  the  trial  of  an  indictment  for  obtaining  goods  on 
credit,  by  means  of  false  representations  on  the  part  of  the 
prisoner  as  to  his  responsibility,  the  representations  charging 
their  falsity,  and  the  knowledge  of  the  accused  that  they  were 
false  is  established,  the  allegation  that  they  were  made  with  intent 
to  defraud  may  be  supported  by  proof  of  dealings  Of  the  prisoner 
with  parties  other  than  the  complainant,  such  as  purchases  made 
upon  the  faith  of  similar  representations,  which  tend  to  show  a 
fraudulent  scheme  to  obtain  property  by  devices  similar  to  those 
practiced  upon  him,  provided  the  dealings  are  sufficiently  con- 
nected in  point  of  time  and  character,  to  authorize  an  inference 
that  .the  purchase  from  the  complainant  was  made  in  pursuance  of 
the  same  general  purpose.  So,  also,  similar  representations  made 
by  the  prisoner  to  creditors,  from  whom  goods  had  been  previ- 
ously purchased  by  him,  although  no  goods  were  obtained  by 
means  of  the  representations,  may  be  proved  when  evidence  has 
been  given  tending  to  show  that  he  was  at  the  time  making 
fraudulent  disposition  of  the  goods  purchased.  Such  evidence  is 
relevant,  not  as  bearing  upon  the  question  whether  the  prisoner 
made  the  representations  charged,  but  as  tending  to  show  a  motive 
in  pursuance  of  the  general  fraudulent  scheme,  to  quiet  the 
creditors  and  retain  control  of  the  goods,  so  as  to  continue  the 
fraudulent  disposition  of  them.  Mayer  v.  People,  80  X.  Y.  364. 
There  are  cases  holding  that  it  is  only  as  part  of  the  res  gestae, 
that  evidence  of  other  acts  can  be  received  in  a  criminal  case  to 
show  the  intent.  2  Best,  Ev.  (Wood's  ed.  1870),  876,  888,  note; 
Reg.  v.  Oddy,  5  Cox,  C.  C.  210,  215;  Copperman  v.  People,  56 
jST.  Y.  594;  People  v.  Corbin,  56  1ST.  Y.  363.  In  such  cases  only 
prior  acts,  never  subsequent  acts,  can  be  inquired  into. 

The  principle  upon  which  such  evidence  is  admitted  is,  that, 
kk  though  the  prisoner  is  not  to  be  prejudiced  in  the  eyes  of  the 
jury  by  the  need  less  admission  of  testimony  tending  to  prove 
another  crime,  yet,  whenever  the  evidence  which  tends  to  prove 
the  other  crime  tends  also  to  prove  this  one,  not  merely  by  show- 
ing the  prisoner  to  be  a  bad  man  but  by  showing  the  particular 
bad  intent  to  have  existed  in  his  mind  at  the  time  when  he  did 
the  act  complained  of,  it  is  admissible."  State  v.  Lapa<je,  57  N. 
H.  215,  24  Am.  Rep.  69. 


FALSE    PRETENSES.  713- 

In  the  case  of  Mayer  v.  People,  80  X.  Y.  376,  which  was  the 
case  of  an  indictment  for  obtaining  goods  by  false  pretenses,. 
Rapallo,  J.,  in  speaking  of  the  admissibility  of  testimony  of  this 
nature  upon  the  question  of  intent,  said :  "that  when  the  repre- 
sentations, their  falsity  and  the  knowledge  of  the  accused  that 
they  were  false  is  established  by  competent  testimony,  the  allega- 
tion that  they  were  made  with  intent  to  defraud  may  be  supported 
by  proof  of  dealings  by  the  accused  with  parties  other  than  the 
complainant,  which  tends  to  show  a  fraudulent  scheme  to  obtain 
property  by  devices  similar  to  those  practiced  upon  him,  provided 
the  dealings  are  sufficiently  connected  in  point  of  time  and  char- 
acter to  authorize  an  inference  that  the  purchase  from  the  com- 
plainant was  made  in  pursuance  of  the  same  general  purpose." 

The  objections  to  the  admissions  of  evidence  as  to  other  trans- 
actions, in  which  the  prisoner  has  been  guilty  of  false  pretense 
are  very  apparent.  Such  evidence  compels  the  defendant  to 
meet  charges  of  which  the  indictment  gives  him  no  information. 
confuses  him  in  his  defense,  raises  a  variety  of  issues,  and  thus 
diverts  the  attention  of  the  jury  from  the  one  immediately  before 
it;  and,  by  showing  the  defendant  to  have  been  a  knave  on  other 
occasions,  creates  a  prejudice  which  may  cause  injustice  to  be 
done  him.  It  is  a  well  settled  rule  of  the  criminal  law,  that  the 
general  character  of  a  defendant  cannot  be  shown  to  be  bad,  un- 
less he  shall  first  himself  attempt  to  prove  it  otherwise.  It  ought 
not  to  be  assailed  indirectly  by  proof  of  misconduct  in  other 
transactions,  even  of  a  similar  description.  State  v.  Lapage,  57 
N.  II.  245,  -2\  Am.  liep.  69. 

It  may  well  be  doubted  whether  the  exceptions  to  the  general 
rule  of  law  ought  to  be  further  extended.  In  Reg.  v.  Oddy,  5 
Cox,  C.  C.  210,  Lord  Campbell  remarks,  as  to  the  reception  of 
evidence  where  base  coin  or  counterfeit  bills  are  charged  to  have 
been  knowingly  uttered,  "I  have  always  Thought  that  those 
decisions  go  a  great  way,  and  I  am  by  no  means  inclined  to  apply 
them  to  the  criminal  law  generally."      See   Reg.  v.  Holt,  8  Cox, 

C.  C.  411. 

Generally  speaking,  on  a  trial  for  a  criminal  offense,  evidence 
showing  the  commission  of  other  offenses  of  a  similar  character  is 
competent,  provided  these  other  offenses  tend  to  show  the  quo 
annuo  of  the  specific  offense  tor  which  the  accused  is»  being  tried. 
State  v.  Williams,  2   Kid,.  L.  418;    Weyman   v.  People,  I    Hun, 


714  LAW    OF    EVIDENCE    IN    CRIMINAL    CASES. 

■511;  Bex  v.  Roberts,  1  Campb.  399;  Bielschqfsky  v.  People,  3 
Hun,  40;  Bex  v.  Ellis,  6  Barn.  &  C.  145;  Copperm,an  v.  People, 
56  N.  y.  591;  Com.  v.  Tuckerman,  10  Gray,  179;  Bex  v.  Davis, 
$  Car.  &  P.  177;  Hitchcock's  Case,  6  City  Hall  Rec.  43;  Bex  v. 
II y?V,  1  Bos.  &  P.  94;  Com,,  v.  Eastman,  1  Cush.  189,  48  Am. 
Dec.  596;  Bex  v.  2>as«#,  2  Car.  &  K.  306;  Com.  v.  Coe,  115 
Mass.  481;  Com.  v.  Choate,  105  Mass.  459;  Com.  v.  £/o?^,  4  Met. 
43;  Bex  v.  Dunn,  1  Mood.  C.  C.  146;  6W.  v.  Price,  10  Gray, 
172,  71  Am.  Dec.  668;  Bex  v.  Oddy,  2  Den.  C.  C.  264;  Com.  v. 
Ferrigan,  44  Pa.  386;  7?eo/.  v.  Forster,  Dears.  C.  C.  456;  People 
v.  iroo<#,  3  Park.  Crim.  Rep.  681;  Bottomley  v.  United  States,  1 
Story,  135;  Stout  v.  People,  4  Park.  Crim.  Rep.  71;  Wood!  v. 
United  States,  41  U.  S.  16  Pet,  360,  10  L.  ed.  994;  Beg.  v.  Bich- 
ardson,  8  Cox,  C.  C.  448;  Beg.  v.  Francis,  12  Cox,  C.  C.  612; 
Beg.  v.  Cooper,  L.  R.  1  Q.  B.  19. 

§  440.  Evidence  of  Ability  to  Repay  the  Amount  Obtained 
Immaterial. — It  is  no  defense  to  an  indictment  alleging  the 
obtaining  of  money  by  false  pretenses,  that  the  person  so  obtain- 
ing the  money  intended  to  repay  it,  and  evidence  of  ability  to 
make  the  repayment  is  immaterial.  Where  the  property  obtained 
by  false  pretenses  is  a  check  for  $7000,  evidence  that  the  check, 
which  was  given  as  for  a  loan  of  money,  was  drawn  on  a  bank, 
that  the  drawer  at  the  time  made  deposits  in  two  banks  and  was 
in  the  habit  of  drawing  on  one  of  them,  is  sufficient  to  warrant 
the  jury  in  finding  that  the  check  was  of  value.  Com.  v.  Coe,  115 
Mass.  481. 

§  441.  Pretense  must  be  such  as  to  Mislead  Men  of  Ordi- 
nary Prudence — Contradiction  in  the  Decisions. — A  criminal 
prosecution  cannot  be  based  upon  false  representations  which  are 
not  of  such  a  character  that  a  man  of  common  understanding  is 
justified  in  reiving  upon  them.     State  v.  Burnett,  119  Ind.  392. 

This  ruling  of  the  Indiana  court  is  utterly  repudiated  in  other 
jurisdictions  and  must  be  regarded  as  a  startling  digression  from 
the  entire  current  of  recent  authority.  Mr.  Wharton  says  (2 
Am.  Crim.  L.  §  1188):  "The  prosecutor's  capacities  and  oppor- 
tunities must  be  considered  in  determining  his  culpability.  The 
question  of  carelessness  is  to  be  determined  from  the  prosecutor's 
standpoint.  To  obtain  from  a  jeweler  money  by  exhibiting  a 
spurious  jewel  might  not  be  within  the  statute  for  the  jeweler  to 
offer  the  same  spurious   stone   to  an  ignorant  customer.     Gross 


FALSE    PRETENSES.  715 

■carelessness  is  to  be  determined  by  the  capacity  of  the  prosecutor. 
The  weaker  the  mind,  the  less  stringent  the  rule." 

Mr.  Bishop  says  (2  Crim.  L.  §§  433,  436):  "But  must  the  pre- 
tense be  such  as  it  is  calculated  to  mislead  men  of  ordinary  pru- 
dence ?  Some  of  the  other  cases  rtiy  down  the  doctrine  that  it 
must.  But  in  reason,  and  it  is  believed,  according  to  the  better 
modern  authorities,  a  pretense  calculated  to  mislead  a  weak 
mind,  if  practiced  on  such  a  mind,  is  just  as  obnoxious  to  the 
law  as  one  calculated  to  overcome  a  strong  mind,  if  practiced 
on  the  latter.  Practically,  it  is  impossible  to  estimate  a 
false  pretense  otherwise  than  by  its  effect.  It  is  not  an  abso- 
lute thing,  to  be  handled  and  weighed  as  so  much  material 
substance,  it  is  a  breath  issuing  from  the  mouth  of  a  man,  and  no 
•one  can  know  what  it  will  accomplish  except  as  he  sees  what  in 
fact  it  does.  Of  the  millions  of  men  on  our  earth,  there  is  not 
one  who  would  not  be  pronounced  to  hold  some  opinion,  or  to  be 
influenced  in  some  affair,  in  consequence  of  considerations  not 
adapted  to  affect  any  mind  of  ordinary  judgment  and  discretion. 
And  no  man  of  business  is  so  wary  as  never  to  commit,  in  a  single 
instance,  a  mistake  such  as  any  jury  would  say  on  their  oath  could 
not  be  done  by  a  man  of  ordinary  judgment  and  discretion. 
These  facts  being  so,  plainly  a  court  cannot,  with  due  regard  to 
the  facts  of  human  life,  direct  a  jury  to  weigh  a  pretense,  an 
argument,  an  inducement  to  action,  in  any  other  scale  than  that 
of  its  effect." 

There  has  been  a  conflict  of  opinion  as  to  whether  the  false 
pretenses,  to  be  indictable,  should  be  such  as  would  necessarily 
impose  upon  a  man  of  ordinary  prudence.  In  New  York.  Penn- 
sylvania, Arkansas,  and  some  of  the  other  states,  if  has  been  held 
that  a  representation,  though  false,  is  not  within  the  statute  mak- 
ing it  an  offense  to  obtain  money  or  other  property  under  false 
pretenses,  unless  calculated  to  deceive  persons  of  ordinary  pru- 
dence. In  Pennsylvania  and  New  York  such  is  no  longer  the 
law,  it  being  now  held  that  it  is  not  less  a  take  pretense  that  the 
party  imposed  upon  might  by  common  prudence  have  avoided 
the  imposition.  We  think  that  it  is  generally  received  both  in 
England  and  the  United  States  as  the  law.  that  the  pretense  need 
not  be  such  an  artificial  device  as  will  impose  upon  a  man  of  ordi- 
nary prudence  or  caution,  that  the  pretense  need  nol  he  such  as 
cannot  be  guarded  against  by  ordinary  caution  or  common  pru- 
dence.    Colbert  v.  State,  1  Tex.  App.  314. 


716  LAW    OF    EVIDENCE    IN    CRIMINAL    CASES. 

If  the  construction  should  be  narrowed  to  cases  which  might  be 
guarded  against  by  common  prudence,  the  weak  and  imbecile,  the 
usual  victims  of  these  pretenses,  would  be  left  unprotected.  State 
v.  Mills,  17  Me.  211. 

It  is  none  the  less  a  false  pretense  because  the  party  imposed 
on  might,  by  common  prudence,  have  avoided  the  imposition. 
Com.  v.  Henry,  22  Pa.  253. 

The  object  and  purpose  of  the  law  is,  to  protect  all  persons 
alike,  without  regard  to  the  single  capacity  to  exercise  ordinary 
caution,  a  condition  of  mind  very  difficult  of  definition,  and  cer- 
tainly of  very  different  meaning  under  the  various  circumstances 
that  may  surround  the  person  supposed  to  exercise  it.  Thus,  a 
child  entrusted  with  a  watch,  money  or  other  valuables,  to  be 
borne  to  an  artificer,  merchant  or  friend  might  be  induced  by  the 
most  flimsy  and  self-apparent  falsehoods,  to  part  with  it;  still,  if 
these  representations  were  of  a  character  to  secure  the  credit  of 
the  child  and  deprive  it  of  the  possession  of  the  goods,  however- 
absurd  such  representations  might  seem  to  the  more  mature  and 
experienced,  yet  it  would  be  such  false  pretenses  by  one  person  to 
another  as  deprived  that  other  of  his  personal  property,  as  con- 
templated by  the  letter  and  spirit  of  the  law.  Bowen  v.  State,  9 
Baxt.  45,  40  Am.  Eep.  71. 

§  442.  Distinction  between  Larceny  and  False  Pretenses. — 
The  distinction  between  the  two  crimes  is  sometimes  very  narrow,. 
but  yet  it  is  well  defined.  Where,  by  means  of  fraud,  conspiracy 
or  artifice,  possession  of  the  property  is  obtained  with  felonious 
intent  and  the  title  still  remains  in  the  owner,  larceny  is  estab- 
lished;  while  the  crime  is  false  pretenses  if  the  title  as  well  as  the 
possession  is  absolutely  parted  with. 

In  Com.  v.  Barry,  124  Mass.  325,  there  was  evidence  that  as  A 
was  passing  a  bar-room,  the  defendant,  a  girl,  called  him  in,  and 
he,  at  her  request,  gave  her  money  to  buy  a  bottle  of  brandy; 
they  went  upstairs  together,  and  she  said  this  bottle  would  not  be 
enough  for  the  night,  and  asked  for  more  money  with  which  to< 
buy  another  bottle.  A  thereupon  gave  her  a  twenty-dollar  bill 
to  get  a  quart  of  brandy,  the  price  of  which  was  §3,  not  expect- 
ing to  receive  the  bill  back,  but  the  change  after  deducting  the- 
price  of  the  brandy;  the  defendant  went  out,  and  soon  returned 
with  another  girl,  saying  she  could  not  get  it;  the  other  girl  said 
she  knew  where  to  get  it,  and  the  two  girls  wTent  out,  and  he  saw 


FALSE    PRETENSKS.  717 

no  more  of  them  or  his  money.  Upon  this  evidence  the  supreme 
court  of  Massachusetts  had  no  difficulty  in  holding  the  defendant 
properly  convicted  of  larceny. 

In  the  case  of  Loomis  v.  People,  67  K  Y.  322,  23  Am.  Rep. 
123,  it  appeared  that  Lewis,  one  of  the  prisoners,  made  the 
acquaintance  of  Olason,  the  prosecutor,  and  under  the  pretense 
that  he  had  a  check  for  $500  lie  desired  to  get  cashed  at  a  bank, 
invited  Olason  to  go  with  him;  he  led  him  into  a  saloon,  where 
was  the  prisoner  Loomis,  a  confederate  of  Lewis.  Lewis  proposed 
to  Loomis  to  throw  dice;  they  did  so  for  $5,  and  Loomis  lost; 
they  then  proposed  to  throw  for  slOO.  Lewis  asked  Olason  to 
lend  him  $90,  saying,  "I  am  sure  to  heat  him  again,  and  you  can 
have  your  money  back.  If  I  do  lose  I  have  got  the  check  for 
$500,  and  we  will  go  up  to  the  bank  and  get  the  check  cashed, 
and  you  can  have  the  money."  (  Mason  let  him  have  the  $90,  the 
dice  were  thrown,  and  Lewis  lost.  Olason  insisted  on  the  return 
of  his  money;  the  purported  check  was  then  put  up  against  $100, 
and  Lewis  again  lest;  Loomis  and  Lewis  thereupon  went  away. 
The  court  charged  the  jury  that  if  satisfied,  that  the  two  prison- 
ers conspired  fraudulently  to  obtain  the  complainant's  money, 
and  to  convert  it  absolutely  without  his  consent,  they  could  con- 
vict of  larceny;  and  it  was  held  no  error,  and  that  the  evidence 
was  sufficient  to  sustain  the  conviction,  the  court  observing:  "It 
was  a  clear  case  of  larceny.  .  .  .  The  form  of  throwing  the  dice 
was  only  a  cover,  a  device  and  contrivance  to  conceal  the  original 
■design  and  so  long-as  there  was  no  consent  to  part  with  the  money, 
does  not  change  the  real  character  of  the  crime.  While  the  element 
of  trespass  i>  wanting,  and  the  offense  is  not  larceny  where  consent  is 
given,  and  the  owner  intended  to  part  with  his  property  absolutely, 
and  not  merely  with  a  temporary  possession  of  the  same,  even  al- 
though such  consent  was  procured  by  fraud,  and  the  person  obtain- 
ing it  had  an  animus  furandi',  yet,  a,-  is  well  .-aid  by  a  writer  upon 
criminal  law:  'It  is  different  where,  with  the  animus  furandi, 
.-,  person  obtains  consent  To  his  temporary  possession  of  property, 
and  then  converts  it  to  his  own  use.  The  act  goes  farther  than 
the  consent,  and  may  be  fairly  said  to  be  against  it.  Consenl  to 
deliver  the  temporary  possession  i-  not  consent  to  deliver  the 
property  in  a  thing,  and  if  a  person,  animo  furandi  avails  himself 
oi  a  temporary  possession  for  a  specific  purpose,  obtained  h\  con 
sent,  to  convert  the  property  in  the  thing  to  himself,  and  di  I 


718  LAW    OF    EVIDENCE    IN    CRIMINAL    CASES. 

the  owner  thereof,  lie  certainly  has  not  the  consent  of  the  owner. 
Me  is,  therefore,  acting  against  the  will  of  the  owner,  and  is  a 
trespasser  because  a  trespass  upon  the  property  of  another  is  only 
doing  some  act  upon  that  property  against  the  will  of  the  owner.' " 

§  443.  Examination  of  the  English  Rule. — "  By  24  and  25 
Viet.,  chap.  90,  §  SS,  whosoever  shall,  by  any  false  pretense  ob- 
tain from  any  other  person  any  chattel,  money,  or  valuable  secur- 
ity, with  intent  to  defraud,  shall  be  guilty  of  a  misdemeanor,  and 
being  convicted  thereof,  shall  be  liable,  at  the  discretion  of  the 
court,  to  be  kept  in  penal  servitude  for  the  term  of  three  (now  five) 
years,  or  to  be  imprisoned  for  any  term  not  exceeding  two  years, 
with  or  without  hard  labor,  and  with  or  without  solitary  confine- 
ment. 

"  By  the  same  section  it  is  provided  '  that  if,  upon  the  trial  of 
any  person  indicted  for  such  misdemeanor,  it  shall  be  proved  that  he 
obtained  the  property  in  question  in  any  such  manner  as  to  amount 
in  law  to  larceny,  he  shall  not,  by  reason  thereof,  be  entitled  to 
be  acrpiitted  of  such  misdemeanor,  and  no  person  tried  for  such 
misdemeanor  shall  be  liable  to  be  afterwards  prosecuted  for  lar- 
ceny upon  the  same  facts.' 

"  By  the  same  section,  '  provided  also,  that  it  shall  be  sufficient 
in  any  indictment  for  obtaining,  or  attempting  to  obtain,  any  such 
property  by  false  pretenses  to  allege  that  the  party  accused  did 
the  act  with  intent  to  defraud,  without  alleging  any  intent  to 
defraud  any  particular  person,  and  without  alleging  any  ownership 
of  the  chattel,  money,  or  valuable  security,  and  on  the  trial  of  any 
such  indictment,  it  shall  not  be  necessary  to  prove  an  intent  to  de- 
fraud any  particular  person,  but  it  shall  be  sufficient  to  prove 
that  the  party  accused  did  the  act  charged  with  an  intent  to  de- 
fraud.'"    2  Roscoe,  Crim.  Ev.  (8th  ed.)  *497. 

On  an  indictment  for  obtaining  goods  by  false  pretenses,  the 
government  is  not  held  to  proof  of  all  the  pretenses  alleged.  See 
cases  cited  in  2  Bishop,  Crim.  Proc,  §§  165-171.  But  if  there  is 
no  variance  in  such  case,  it  certainly  would  savor  of  great  refine- 
ment to  hold  that  there  is  a  variance  when  the  indictment  charges 
a  conspiracy  to  obtain  the  goods  by  several  false  pretenses,  and 
only  one  is  proved.  The  ground  taken  in  argument  is,  that  in 
the  latter  case  the  agreement  between  the  conspirators  is  not 
proved  as  laid.  But  the  means  by  which  the  cheating  is  to  be 
accomplished  are  not  necessarily  to  be  held  to  be  indivisible.    The 


FALSE    PKETE.NSES.  719 

specification  of  them  is  required  in  our  practice,  in  cases  wheie 
the  purpose  itself  of  the  alleged  conspiracy  is  not  criminal  or  un- 
lawful, in  order  that  it  may  appear  that  the  means  contemplated 
to  carry  it  out  are  criminal  and  unlawful. 

According  to  the  practice  in  England,  as  we  gather  from  the 
course  of  the  decisions,  it  is  not  necessary  to  set  out  the  contem- 
plated means  for  effecting  the  cheat.  Rex  v.  Gill,  2  Barn.  &  Aid. 
204;  Reg.  v.  Gompertz,  9  Q.  1!.  824;  Sydserff  v.  Reg.  11  Q.  B. 
215  ;  Latham  v.  Reg.  5  Best.  &  S.  035.  But  in  order  to  give 
needed  information  to  the  court  and  to  the  defendant,  where  there 
is  merely  a  general  charge  of  a  conspiracy  to  obtain  goods  by 
false  pretenses,  a  specification  of  particulars  is  ordered  by  the 
court,  if  moved  for.  Reg.  v.  K<  nrick,  5  Q.  B.  19;  Rex  v.  Ham- 
ilton. 7  Car.  &  P.  US;  Reg.  v.  Brown,  8  Cox,  C.  C.  69.  In 
Massachusetts,  as  in  others  of  the  United  States,  it  is  held  that 
this  information  should  be  given  in  the  indictment,  in  cases  where 
the  purpose  of  the  conspiracy  itself  does  not  appear  to  be  crim- 
inal or  unlawful,  and  that  this  rule  applies  to  conspiracies  to  cheat, 
as  cheating  is  not  necessarily  criminal  or  unlawful.  Com.  v.  Hunt. 
1  Met.  Ill ;  Com.  v.  Eastman,  1  Cush.  189,  18  Am.  Dec.  590 ; 
Com.  v.  Shedd,  7  Cush.  511;  Com.  v.  Wallace,  16  Gray,  221. 

§  111.  Partial  Review  of  the  Authorities. — In  Loomis  v. 
People,  67  X.  Y.  329,  26  Am.  Rep.  123,  it  is  stated:  -  Where, 
by  fraud,  conspiracy,  or  artifice,  the  possession  is  obtained  with  a 
felonious  design,  and  title  still  remains  in  the  owner,  larceny  is 
established.  Where  title  as  well  as  possession  is  absolutely 
parted  with,  the  crime  is  false  pretenses.*'  Compare  Whart  Am. 
Crim.  L.  (9th  ed.),  §§  961,  965.  and  Kellogg  v.  State,  26   Ohio 

St.  15. 

In  People  v.  Clough,  17  Wend.  351,31  Am.  Dec.  303,  false 
pretenses  were  used  to  obtain  charity,  and  it  was  held  that  the 
obtaining  money  by  the  applicant  for  that  purpose  by  such  means 
was  not  a  criminal  offense,  as  they  called  upon  the  donor  to  per- 
form a  moral  duty,  arising  out  of  compassion,  and  that  the  statute 
was  deshmed  only  to  protect  persons  in  their  commercial  dealings; 
and  in  Peopl  V.Thomas,  ■'<  Hill.  L69,  the  false  pretenses  induced 
the  performance  of  a  legal  duty,  and  for  that  reason  constituted 

no  criminal  offense. 

In  Virginia,  the  statute  makes  the  obtaining  of  money  or  other 
property  by  any  false  pretense,  larceny.     In  that   .talc,  the  court 


720  LAW    OF    EVIDENCE    IN    CRIMINAL    CASES. 

holds  that  an  indictment  for  the  offense  may  be  either  in  the  form 
of  an  indictment  for  larceny  at  common  law,  or  by  charging  the 
specific  facts  which  the  act  declares  shall  be  deemed  larceny. 
Leftwich  v.  Com.  20  Gratt.  710;  Dowdy  v.  Com.  9  Gratt.  727, 
704.  60  Am.  Dec.  314. 

If  any  of  the  pretenses  are  false,  to  which  persons  of  ordinary 
caution  would  give  credit,  it  is  sufficient.  People  v.  Haynes,  11 
Wend.  557;  People  v.  Thomas,  23  K  Y.  321.  Any  false  pre- 
tense, which  induces  confidence,  is  sufficient.  Thomas  v.  People, 
'OX.Y.  352;  Smith  v.  People,  47  K  Y.  303. 

Under  the  common  law  a  false  bank  check  is  not  a  false  token. 
■Com.  v.  Speer,  2  Va.  Cas.  65 ;  Com.  v.  Swinney,  1  Ya.  Gas.  146 ; 
Rex  v.  Lara,  6  T.  E.  565 ;  Rex  v.  Flint,  Buss.  &  R.  460 ;  State 
x.  Justice,  13  N.  C.  199;  State  v.  Stroll,  1  Rich.  L.  244;  Whart. 
Am.  Crim.  L.  §§  2061,  2065;  2  Russell,  Grimes,  2S5,  2S6 ;  3 
Archb.  Crim.  Pr.  &  PI.  473,  and  notes  by  Waterman. 

Even  where  the  evidence  shows  that  the  accused  had  both  the 
intention  and  the  ability  to  pay  for  the  articles  purchased,  a  con- 
viction must  follow.  The  act  is  not  bereft  of  its  criminality  by 
evidence  of  intent  or  ability  to  pay.  Com.  v.  Coe,  115  Mass.  481; 
Com.,  v.  Mason,  105  Mass.  163.  It  is  not  of  the  essence  of  the 
misdemeanor  that  the  defendant  should  be  unable  to  restore  that 
which  he  wrongfully  obtains.  If,  by  a  false  pretense,  he  had  pro- 
cured the  loan  of  $500  in  bank  notes,  his  ability  to  refund  the 
monev  would  not  shield  him.  and  it  would  not  be  necessary  to 
aver  his  inability  to  repay.     State  v.  Fletcher,  35  N.  J.  L.  445. 

In  the  English  case  of  Reg.  v.  Bryan,  1  Dears.  &  B.  C.  C.  265, 
decided  in  lx<'>7.  the  prisoner  succeeded  in  obtaining  a  substantial 
loan  from  a  pawnbroker  on  some  very  inferior  spoons  by  fraudu- 
lently and  falsely  representing  them  to  be  as  good  as  "  Elkington's 
A,"  spoons,  to  have  as  much  silver  on  them,  that  the  foundations 
were  of  the  best  material,  etc.  It  was  held,  however,  that 
he  could  not  be  convicted  of  obtaining  money  by  false  pretenses, 
because  his  statements  were  in  the  nature  of  "mere  praise  or 
exaggeration,  or  puffing." 

"  It  seems  to  me,"  said  Lord  Campbell,  Ch.  J.,  "it  never  could 
have  been  the  intention  of  the  legislators  to  make  it  an  indictable 
offense  for  the  seller  to  exaggerate  the  quality  of  that  which  he 
is  selling,  any  more  than  it  would  be  an  indictable  offense  for  the 
purchaser,  during  the  bargain,  to  depreciate  the  quality  of  the 


FALSE    PRETENSES.  721 

goods,  and  to  say  that  they  were  not  equal  to  that  which  they 
really  were  ...  As  yet,  I  find  no  case  in  which  a  mere  mis- 
representation  at  the  time  of  sale  of  the  quality  of  the  goods  has 
been  held  to  be  an  indictable  offense."  Shirley,  Lead.  Crim. 
■Cas.  66. 

The  intent  with  which  the  alleged  false  pretense  is  perpetrated, 
is  always  a  question  of  fact  for  the  jury,  and  is  an  essential  ingre- 
dient of  the  charge.  The  evidence  must  disclose  the  intent  to 
the  satisfaction  of  the  jury.  Trogdon  v.  Com.  31  Graft.  872; 
People  v.  Kendall,  25  Wend.  399,  37  Am.  Dec.  240;  Brown  v. 
People,  16  Hun,  535;  Parmelee  v.  People,  8  Hun,  623. 

In  Reg.  v.  Mills,  1  Dears.  &  B.  C.  C.  205,  the  prisoner  was 
charged  with  obtaining  money  by  the  false  pretense  that  he  had 
cut  sixty-three  fans  of  chaff,  when  in  fact  he  had  only  cut  forty- 
five.  It  appeared  by  the  evidence  that  the  prisoner  was  em- 
ployed to  cut  chaff  at  twopence  per  fan,  and  that  on  making 
the  false  pretense  alleged  in  the  indictment,  he  demanded  10s.  6d. 
from  the  prosecutor.  The  prosecutor  had  previously  seen  the 
prisoner  remove  eighteen  fans  from  an  adjoining  place  and  add 
them  to  the  heap  which  he  pretended  he  had  cut,  but,  notwith- 
standing this  knowledge,  he  paid  the  prisoner  the  amount  he 
demanded.  It  was  held  that  there  ought  not  to  be  a  conviction, 
because  the  money  had  not  been  obtained  by  means  of  the  false 
pretense. 

''The  test  is,"  says  Coekburn,  C/t.  J.,  "what  is  the  motive 
operating  on  the  mind  of  the  prosecutor  which  induced  him  to 
part  with  his  money?  Here  the  prosecutor  knew  that  the  pre- 
tense was  false,  he  had  the  same  knowledge  of  its  falseness  as  the 
prisoner.  It  was  not  the  false  pretense,  therefore,  which  induced 
the  prosecutor  to  part  with  his  money;  and  if  it  is  said  that  it 
was  parted  with  from  a  desire  to  entrap  the  prisoner,  how  can  it 
be  said  to  have  been  obtained  by  means  of  the  false  pretense  \ " 

It  must  always  appear  in  eviden m  an  indictment  for  obtain- 
ing goods  by  false  pretenses,  that  the  prosecutor  parted  with  the 
goods  upon  the  faith  of  the  false  pretense  alleged. 
46 


CHAPTER  LII. 

LARCENY. 

§  445.  Larceny  Defined. 

446.  Larceny  Includes  False  Pretenses  and  Embezzlement. 

447.  Distinction  between  Larceny  and  False  Pretenses  still 

Preserved. 

448.  Felonious  Intent  must  be  Shown. 

440.  Every  Larceny  must  Include  a  Trespass. 

450.  Corpus  Delicti  must  be  Shown. 

451.  Wliat  may  be  Shown  when  Identity  is  in  Question. 

452.  Recent  Possession  of  Stolen  Property  may  be  Shown. 

453.  Evidence  of  other  Similar  Offenses. 

454.  Case  of  Peg.  v.  Thomas  Considered. 

455.  Evidence  of  Value. 

456.  New  York  Rule  as  to  Name  of  Party  Defrauded. 

457.  Review  of  Miscellaneous  Authorities. 

§  445.  Larceny  Defined. — "A  person  who,  with  the  intent  to 
deprive  or  defraud  the  true  owner  of  his  property,  or  of  the  use 
and  benefit  thereof,  or  to  appropriate  the  same  to  the  use  of  the 
taker,  or  of  any  other  person,  either, 

"1.  Takes  from  the  possession  of  the  true  owner,  or  of  any 
other  person,  or  obtains  from  such  possession  by  color  or  aid  of 
fraudulent  or  false  representation  or  pretense,  or  of  any  false 
token  or  writing;  or  secretes,  withholds,  or  appropriates  to  his 
own  use,  or  that  of  any  person  other  than  the  true  owner,  any 
money,  personal  property,  thing  in  action,  evidence  of  debt  or 
contract,  or  article  of  value  of  any  kind;  or, 

"2.  Having  in  his  possession,  custody,  or  control,  as  a  bailee, 
servant,  attorney,  agent,  clerk,  trustee,  or  officer  of  any  person, 
as?*  K-iation,  or  corporation,  or  as  a  public  officer,  or  as  a  person 
authorized  by  agreement,  or  by  competent  authority,  to  hold  or 
take  such  possession,  custody,  or  control,  any  money,  property, 
evidence  of  debt  or  contract,  article  of  value  of  any  nature,  or 
thing  in  action  or  possession,  appropriates  the  same  to  his  own 
use,  or  that  of  any  other  person  other  than  the  true  owner  or  per- 
son entitled  to  the  benefit  thereof: 

722 


LARCENY.  723 

"Steals  such  property,  and  is  guilty  of  larceny."  N.  Y.  Penal 
Code,  §  528.     ' 

Larceny,  by  the  common  law,  is  defined  to  be  "the  felonious 
taking  and  carrying  away  of  the  personal  goods  or  property  of 
another."     Jolmson  v.  People,  113  111.  99. 

§  446.  Larceny  Includes  False  Pretenses  and  Embezzle- 
ment.— The  definition  of  the  term  larceny  has  now  been  broad- 
ened so  as  to  take  within  it  the  offenses  formerly  known  as  false 
pretenses  and  embezzlement.  And  as  between  them  and  the 
common  law  offense  of  larceny,  a  distinction  remains  which  must 
be  observed  in  the  presentation  by  indictment.  People  v.  Dumar, 
106  N.  Y.  502.  And  we  think  the  change  exists  only  in  the  defi- 
nition, and  does  not  go  to  the  legal  effect  except  so  far  as  it  is 
produced  by  the  terms  of  the  statute.  And  that  as  relating  to 
those  offenses  which  have  been  given  the  name  of  larceny  by  the 
statute,  the  consequences  in  respect  to  the  property  taken  continue 
the  same  as  they  were  before.  The  principle  upon  which  the  dis- 
tinction in  that  respect  rested,  was  that  larceny  at  common  law 
was  the  act  of  feloniously  taking  property,  which  was  without  the 
consent  of  the  owner,  while  obtaining  it  by  false  pretenses  was 
produced  by  the  consent  and  delivery  of  it  by  the  owner  to  the 
fraudulent  vendee,  and  when  so  delivered  with  the  intent  at  the 
time  being  to  part  with  the  title  and  invest  it  in  the  latter, 
the  effect  of  a  common  law  larceny  was  not  given  to  it,  so  as  to 
defeat  the  title  of  a  bona  tide  purchaser  for  value.  Zink  v.  Peo- 
ple, 77  K  Y.  114,  33  Am.  Rep.  589. 

The  same  reason  for  this  rule  exists  now  as  before  the  applica- 
tion of  the  extended  definition,  in  Benedict  v.  Williams,  48 
Hun,  123. 

The  distinction,  although  fine,  is  quite  clear,  between  larceny 
and  obtaining  money  under  false  pretenses.  Thome  v.  Turck,  94 
N.  Y.  95,  46  Am.  Rep.  126,  citing  Loomis  v.  People,  67  N.  Y. 
329,  23  Am.  Rep.  L23. 

§  447.  Distinction  between  Larceny  and  False  Pretenses 
still  Preserved. — The  distinction  between  larceny  and  false  pre- 
tenses is  a  very  nice  one  in  many  instances.  In  some  of  the  old 
English  cases  the  difference  is  more  artificial  than  real,  and  rests 
purely  upon  technical  grounds.  Much  of  this  nicety  is  doubtless 
owino-  to  the  fact  that  at  the  time  many  of  the  eases  were  decided 
larceny  was  a  capital  felony  in  England,  and  the  judges  naturally 


724  LAW    OF    EVIDENCE    IN    CK1MINAL    CASES. 

leaned  to  a  merciful  interpretation  of  the  law  out  of  a  tender 
regard  for  human  life.  The  distinction  between  larceny  and 
cheating  by  false  pretenses  is  well  stated  in  Russell,  Crimes  (5th 
Am.  ed.)  28.  After  an  exhaustive  review  of  the  cases  the  learned 
author  says:  "The  correct  distinction  in  cases  of  this  kind  seems 
to  be  that  if,  by  means  of  any  trick  or  artifice,  the  owner  of  prop- 
erty is  induced  to  part  with  the  possession  only,  still  meaning  to 
retain  tlie  right  of  property,  the  taking  by  such  means  will  amount 
to  Larceny;  but  if  the  owner  part  with  not  only  the  possession  of 
the  goods,  but  the  right  of  property  in  them  also,  the  offense  of 
the  party  obtaining  them  will  not  be  larceny,  but  the  offense  of 
obtaining  goods  by  false  pretenses."  Com.  v.  Eichclberger,  119 
Pa.  254. 

There  is  still  in  the  state  of  New  York  the  crime  of  larceny, 
and  the  crime  of  obtaining  property  under  false  pretenses,  with 
different  definitions  by  statute,  and  subjecting  the  offender  to  dif- 
ferent punishments;  the  one  a  misdemeanor,  the  other  a  felony. 
All  distinction  between  them  has  been  abolished  in  some  of  the 
states  of  the  Union,  but  until  the  legislature  interferes,  the  courts 
of  this  state  have  no  right  or  power  to  disregard  that  distinction 
however  technical  it  may  seem.  This  distinction  as  we  under- 
stand it  is  this:  In  larceny,  the  owner  of  the  thing  stolen  has  no 
intention  to  part  with  his  property  therein;  in  false  pretenses,  the 
owner  does  intend  to  part  with  his  property  in  the  thing,  but  this 
intention  is  the  result  of  fraudulent  contrivances.  And  one  test 
we  conceive  to  be  this:  Could  the  offender  confer  a  good  title 
upon  another  by  the  sale  and  delivery  of  the  thing?  I  do  not 
mean  to  apply  this  test  to  the  case  of  money,  but  goods  and  chat- 
tels. If  obtained  by  larceny  it  is  clear  he  could  not.  Bassett  v. 
Spoford,  45  K  Y.  3S8,  6  Am.  Rep.  101.  If  obtained  by  fraud 
it  is  equally  clear  that  he  could,  for  in  that  case  the  property 
passes  in  the  subject-matter.     In  the  former  case  it  does  not. 

§  44s.  Felonious  Intent  must  be  Shown. — The  felonious  in- 
tent must  exist  at  the  time  of  taking  or  obtaining  possession  of 
the  property,  where  the  possession  is  obtained  by  means  of  false 
representation  or  pretense.  Where,  however,  the  offense  con- 
sists in  the  secreting,  withholding  or  appropriating,  or  where  it 
consists  in  the  appropriating  of  property  by  bailee,  servant,  attor- 
ney, agent,  clerk,  etc.,  it  is  only  necessary  that  the  felonious  intent 
exists  at  the  time  of  such  secreting,  withholding  or  appropriating 


LARCENY.  725 

of  the  property,  for  in  such  cases  the  property  stolen  would  be 
property  in  the  possession  of  the  party  secreting,  withholding  or 
appropriating  it.     People  v.  Moore,  37  Hun,  84. 

It  has  been  my  endeavor  in  a  somewhat  extended  investigation 
of  the  rules  of  evidence  required  in  crimes  of  this  nature,  to  re- 
produce the  most  recent  judicial  comment  upon  the  subject.  A 
formidable  array  of  authority  has  been  critically  examined;  and 
my  conclusion  is  that  Chief  Justice  Leonard  of  the  Nevada 
supreme  court  in  the  case  of  State  v.  Slingerland,  19  JSev.  135, 
has  stated  the  conclusions  of  both  reason  and  authority  that 
underlie  this  entire  topic  of  evidence  of  intent  in  cases  of  larceny. 
It  should  be  borne  in  mind,  that  there  is  a  studious  attempt  in 
certain  quarters  to  engraft  a  refinement  upon  the  law  governing 
larceny,  in  order  that  it  may  appear  that  an  essential  ingredient  of 
the  offense  is  wanting  where  the  taking  of  the  property  is  shown 
to  have  been  without  a  view  to  pecuniary  profit,  but  rather  in  a 
spirit  of  malicious  mischief.  In  reproducing  Judge  Leonard's 
opinion,  my  idea  is,  to  dissipate  the  errors  arising  from  this  view; 
and  show  the  inadmissibility  of  evidence  tending  to  establish  a 
mere  malicious  taking  with  a  view  to  annoyance  and  vexation. 
His  honor  says,  in  commenting  upon  an  instruction  which  was 
alleged  to  have  been  erroneous  : 

"The  court  instructed  the  jury  that,  if  they  believed  beyond 
a  reasonable  doubt  that  the  defendant  took  the  property  as  alleged 
in  the  indictment,  with  the  intent  to  permanently  deprive  the 
owner  of  the  property,  and  without  any  intention  to  return  the 
same,  it  was  a  felonious  intent,  and  the  defendant  was  guilty. 
It  is  claimed  that  this  instruction  is  erroneous  in  stating  that  the 
crime  of  grand  larceny  may  be  committed,  although  the  taker  of 
the  property  alleged  to  have  been  stolen  derives  no  benefit,  and 
does  not  intend  or  expect  to  be  benefited  therefrom.  If  one  of 
the  essential  elements  of  larceny  is  an  intention  to  profit  by  the 
conversion  of  the  property,  then  the  instruction  under  considera- 
tion was  incorrect.  A  court  cannot  instruct  a  jury  that  certain 
facts  constitute  a  certain  offense,  unless  every  essential  fact  neces- 
sary to  constitute  the  offense  be  included  in  the  statement. 
Weston  v.  United  States,  5  Cranch,  C.  C.  404.  Although  the 
authorities  upon  this  question  are  somewhat  conflicting,  those 
sustaining  the  instruction  greatly  preponderate,  and,  in  our  opin- 
ion, they  are  upheld  by  good  sense  and  sound  reason. 


726  LAW  OF  EVIDENCE  IN  CRIMINAL  CASES. 

"  In  State  v.  Mills,  12  Nev.  403,  this  court  acknowledged  the 
correctness  of  the  principle  that,  where  the  intent  is  to  deprive 
the  owner  of  his  property,  it  is  not  essential  that  the  taking  should 
be  with  a  view  to  pecuniary  profit. 

"  In  Dignowitty  v.  State,  17  Tex.  530,  67  Am.  Dec.  670,  the 
court  said  :  '  But  to  constitute  the  felonious  intent,  it  is  not  nec- 
essary that  the  taking  should  be  done  lucri  causa;  taking  with  an 
intention  to  destroy  will  be  sufficient  to  constitute  the  offense,  if 
done  to  serve  the  offender  or  another  person,  though  not  in  a 
pecuniary  way.' 

"And,  said  the  court  in  Hamilton  v.  State,  35  Miss.  219  :  '  The 
rule  is  now  w-ell  settled  that  it  is  not  necessary,  to  constitute  lar- 
ceny, that  the  taking  should  be  in  order  to  convert  the  thing 
stolen  to  the  pecuniary  advantage  or  gain  of  the  taker,  and  that 
it  is  sufficient  if  the  taking  be  fraudulent,  and  with  an  intent 
wholly  to  deprive  the  owner  of  the  property.'  Roscoe,  Crim.  Ev. 
(2d  ed.)  533;  Bex  v.  Cabbage,  Russ.  &  II.  202;  Hex  v.  Morfit, 
Russ.  &  It.  307.  And  it  is  said  by  the  commissioners  of  criminal 
law  in  England,  that  'the  ulterior  motive  by  which  the  taker  is 
influenced  in  depriving  the  owner  of  his  property  altogether, 
whether  it  be  to  benefit  himself  or  another,  or  to  injure  any  one 
by  the  taking,  is  immaterial.'  The  rule  we  consider  to  be  in  ac- 
cordance with  the  principle  on  which  the  law  of  larceny  rests, 
which  is  to  punish  the  thief  for  wrongfully  and  feloniously  de- 
priving the  owner  of  his  property.  The  reason  of  the  law  is  to 
secure  a  man's  property  to  him,  and  that  is  to  be  carried  out  rather 
by  punishing  the  thief  for  feloniously  depriving  him  of  it,  than 
fur  wrongful  gain  he  has  made  by  the  theft.  The  mortal  wrong 
is  founded  in  the  wrongful  and  felonious  deprivation." 

"  Sustaining  the  same  doctrine  in  Warden  v.  State,  60  Miss.  640, 
the  court  said :  '  It  seems  to  meet  the  approval,  also,  of  most  of 
the  modern  wTriters  on  criminal  law,  and  to  be  sanctioned  by  many 
cases  both  English  and  American.' 

"In  State  v.  South,  28  N.  J.  L.  2s,  75  Am.  Dec.  250,  the  ques- 
tion was  whether  the  fraudulently  depriving  the  owner  of  the 
temporary  use  of  a  chattel  is  larceny  at  common  law;  whether  the 
felonious  intent  or  animus  furandi  may  consist  with  an  intention 
to  return  the  chattel  to  the  owner.  It  was  held  that  if  the  prop- 
erty is  taken  with  the  intention  of  using  it  temporarily  only,  and 
then  returning  it  to  the  owner,  it  is  not  larceny;  but  if  it  appear 


LARCENY.  727 

that  the  goods  were  taken  with  the  intention  of  permanently  de- 
priving the  owner  thereof,  then  it  is  larceny.  And  in  State  v. 
Davis,  3S  IS".  J.  L.  177,  20  Am.  Rep.  367,  the  same  court  adhered 
to  the  doctrine  announced  in  State  v.  South,  supra,  and  said : 
'  There  has  been  no  case  decided  in  this  state  that  has  held  that 
where  the  taker  had  no  intention  to  return  the  goods,  that  the 
taking  was  merely  temporary.  Nor  is  there  anything  that  should 
control  the  action  of  the  jury,  or  the  court  acting  as  such,  under 
the  statute,  when  they  find  that  the  party  having  no  such  intent 
is  guilty  of  larceny.  It  would  be  a  most  dangerous  doctrine  to 
hold  that  a  mere  stranger  may  thus  use  and  abuse  the  property  of 
another,  and  leave  him  the  bare  chance  of  recovering  it  by  care- 
ful pursuit  and  search,  without  any  criminal  responsibility  in  the 
taker.1 

"  In  Berry  v.  State,  31  Ohio  St.  219,  27  Am.  Rep.  506,  and  Com. 
v.  Mason,  105  Mass.  166,  it  was  held  that  the  wrongful  taking  of 
the  property  of  another,  without  his  consent,  with  intent  to  con- 
ceal it  until  the  owner  offered  a  reward  for  its  return,  and  for  the 
purpose  of  obtaining  the  reward,  was  larceny  of  the  property  taken. 
And  see  also,  People  v.  Jaurez,  2s  Cal.  380;  State  v.  Brown,  3 
Strobh.  L.  516;  Keely  v.  State,  11  Ind.  36;  Bex  v.  Cabbage  *1 
Russ.  &  R.  292;  1  Bex  v.  Morfit,  Russ.  &  R.  307;  Reg.  v.  Hollo- 
way,  1  Den.  C.  C.  376,  note  a.     .     .     . 

"  Mr.  Stevens,  in  his  General  View  of  the  Criminal  Law  of  Eng- 
land, 127  says :  '  It  is  larceny  to  take  and  carry  away  a  personal 
chattel  from  the  possession  of  its  owner  with  intent  to  deprive  him 
of  the  property.' 

"Mr.  Roscoe,  in  his  Criminal  Evidence,  621,  says  :  'Eyre,  Ch. 
B.,  in  the  definition  given  by  him,  says :  '  Larceny  is  the  wrongful 
taking  of  the  goods  with  the  intent  to  spoil  the  owner  of  them 
lucri  causa.''  And  Blackstone  says :  'The  taking  must  be  felo- 
nious, that  is,  done  animo  furandi,  or,  as  the  civil  law  expresses 
it,  lucri  causa.''  The  point  arrived  at  by  these  two  expressions, 
animo  furandi  and  lucri  causa,  the  meaning  of  which  has  been 
much  discussed,  seems  to  be  this,  that  the  goods  must  be  taken 
into  the  possession  of  the  thief  with  the  intention  of  depriving 
the  owner  of  his  property  in  them.  .  .  .  Property  is  the 
right  to  the  possession,  coupled  with  an  ability  to  exercise  that 
right.  Bearing  this  in  mind,  we  may  perhaps  safely  define  lar- 
ceny as  follows :  the  wrongful  taking  possession  of  the  goods  of 


728  LAW    OF    EVIDENCE    IN    CRIMINAL    CASES. 

another  with  intent  to  deprive  the  owner  of  his  property  in  them/ 
And  see,  Archb.  Criin.  Pr.  &  PI.  (Pomeroy's  Notes)  1185;  Bar- 
bour, Crim.  L.  174;  2  Bishop,  Crim.  L.  SIS. 

"Against  these  authorities  ...  we  are  referred  to  four 
cases,  viz:  People  v.  Woodward,  31  Hun,  57;  Smith  v.  Shultz, 
2  111.  190;  Wilson  v.  People,  39  K  Y.  159,  and  United  State  v. 
DurJcee,  1  McAll.  196.  In  People  v.  Woodward,  there  was 
an  able  and  exhaustive  dissenting  opinion  by  one  of  the  three 
justices,  and  no  authorities  are  cited  in  support  of  the  majority 
opinion  except  Whart.  Am.  Crim.  L.  §  1784,  and  certain  cases 
therein  referred  to,  which  do  not  sustain  the  text.  In  Smith  v. 
Sh  ulte,  supra,  the  court  only  says :  '  Every  taking  of  the  prop- 
erty of  another  without  his  knowledge  or  consent  does  not  amount 
to  larceny.  To  make  it  such,  the  taking  must  be  accompanied  by 
circumstances  which  demonstrate  a  felonious  intention.' 

"But  the  court  does  not  say  there  can  be  no  felonious  intent 
except  there  be  a  taking  lucri  causa.  In  Peg.  v.  Holloway,  1 
Den.  C.  C.  376,  Parke,  B.,  defined  'felonious'  to  mean  that  there 
is  no  color  of  right  or  excuse  for  the  act,  and  the  intent  must  be 
to  deprive  the  owner,  not  temporarily,  but  permanently,  of  the 
property.  In  Wilson  v.  People,  supra,  it  was  only  decided  that 
the  felonious  intent  must  exist  at  the  time  of  the  taking.  In 
United  States  v.  Durkee,  supra,  the  court  instructed  the  jury  as 
follows  :  '  1.  That,  if  you  believe  from  the  evidence,  that  the  pris- 
oner took  and  carried  away  the  arms  with  intent  to  appropriate 
them,  or  any  portion  of  them,  to  his  own  use,  or  permanently  de- 
prived the  owner  of  the  same,  then  he  is  guilty.  2.  But  if  you 
believe  that  he  did  not  take  the  arms  for  the  purpose  of  appropri- 
ating them,  or  any  part  thereof,  to  his  own  use,  and  only  for  the 
purpose  of  preventing  their  being  used  on  himself  or  his  associates, 
then  the  prisoner  is  not  guilty.'     .     .     . 

"  To  constitute  larceny  the  taking  must  be  felonious,  and  it  is  so 
when  the  intent  is  to  permanently  deprive  the  owner  of  his  prop- 
erty, against  his  will."  * 

*Note. — The  extreme  importance  of  this  matter  is  quite  obvious,  whether  the 
accused  is  to  be  precluded  from  introducing  evidence  tending  to  show  that  the 
taking  was  in  a  spirit  of  mere  mischief,  or  was  with  a  felonious  intent,  is  evi- 
dently a  question  of  considerable  importance,  at  least  to  the  party  on  trial.  In 
the  one  case,  he  is  punishable  for  misdemeanor  with  the  possibility  of  a  mere 


LARCENY.  729 

§  449.  Every  Larceny  must  Include  a  Trespass.— It  is  a 
a  well  established,  but  somewhat  technical  rule,  that  every  larceny 

flue.  In  the  other  case,  it  is  treated  as  a  felony,  and  he  meets  with  a  criminal's 
brand  that  follows  him  through  life.  That  the  distinction  I  have  undertaken 
to  outline  is  by  no  means  fanciful,  I  will  refer  to  the  recent  case  of  People  v. 
Woodward,  31  Hun,  57,  decided  by  the  general  term  of  the  supreme  court  of 
the  state  of  New  York.  Boardman,  J.,  says;  "  Upon  the  evidence  it  is  cer- 
tainly a  grave  question  whether  the  act  charged  and  proved  was  larceny  or 
malicious  mischief.  To  constitute  larceny  there  must  have  been  a  felonious 
intent,  animo  furandi  or  lucri  causa.  The  malicious  killing  of  a  horse  is  a 
misdemeanor.  The  offenses  are  quite  distinct.  In  either  case  there  is  a  tres- 
pass. In  larceny  the  taking  must  be  for  the  purpose  of  converting  to  the  use 
of  the  taker.  In  malicious  mischief  no  such  intent  is  necessary.  In  the  pres- 
ent case  the  evidence  tends  to  show  a  taking  of  the  horse  to  kill  him,  with  a 
sole  desire  to  injure  the  owner.  It  was  incumbent  on  the  court  then  to  point 
out  to  the  jury  the  legal  elements  in  the  crime  of  larceny,  so  as  to  distinguish 
it  from  malicious  mischief.  This,  we  think,  was  not  done.  The  jury  was 
told,  in  substance,  if  defendant  took  or  procured  to  be  taken  this  horse,  and 
killed  or  aided  in  killing  him,  he  must  be  found  guilty.  In  no  part  of  the 
charge  is  this  language  modified  or  qualified. 

"The  seventh  request  to  charge  is  as  follows:  'There  must  have  been  a 
felonious  intent,  for  without  such  an  intent  there  was  no  crime,  and  the 
felonious  intent  must  have  been  formed  before  the  taking;  and  that  if,  before 
the  taking  of  the  horse,  the  intent  was  to  take  it  and  kill  it,  the  crime  would 
not  be  a  felony,  but  an  offense  under  the  statute,  classed  among  misdemeanors 
under  the  term  of  malicious  mischief.'  The  defendant  excepted  to  the  refusal 
to  charge  as  requested.  The  request  to  charge,  the  refusal  to  charge,  and  the 
exception  are  all  very  informal  and  inartificial,  but  sufficient,  we  think,  to 
present  the  important  point  in  the  case. 

"The  defendant  was  entitled  to  have  the  jury  instructed  in  substance  as  re. 
quested.  Mr.  Wharton  in  his  work  on  Criminal  Law,  §§  1781-1784,  has  con- 
sidered whether  larceny  can  exist  where  there  is  no  intent  on  the  part  of  the 
taker  to  reap  any  advantage  from  the  taking.  He  has  reviewed  the  decisions 
from  the  case  of  Rex  v.  Cabbage,  1  Russ.  &  R.  292,  to  the  time  of  his  writing, 
and  concluded  that  the  qualification,  '  lucri  causa,'  has  been  accepted  by  our 
courts  as  an  unquestioned  part  of  the  common  law.  He  says  (§  1784):  '  Thus 
it  has  been  frequently  held  to  be  a  misdemeanor,  of  the  nature  of  malicious 
mischief,  to  kill  an  animal  belonging  to  another,  though  it  has  never  been  held 
larceny  so  to  kill  and  take,  unless  some  benefit  was  expected  by  the  taker.' 
And  he  cites,  in  support  of  such  statement,  among  other  cases,  Com.  v.  Latch, 
1  Mass.  59;  People  v.  Smith,  5  Cow.  258;  Loomis  v.  Edgerton,  19  Wend.  420. 
The  conclusion  is  sustained  by  the  authorities. 

"  It  was  a  serious  matter  for  the  defendant  whether  he  should  be  convicted 
of  grand  larceny  upon  facts  which  he  claimed  could  only  constitute  malicious 
mischief.  He  had  the  right  to  have  the  distinction  pointed  out  to  the  jury. 
He  requested  it,  but  it  was  not  done.  Thus  the  court  neglected  and  refused  to 
point  out  the  essential  ingredient  of  the  crime  of  grand  larceny,  whereby  the 
defendant  may  have  been  convicted  of  a  felony,  while  the  facts  and  the  charge 


730  LAW    OF    EVIDENCE    IN    CRIMINAL    CASES. 

must  include  a  trespass,  and  that  the  taking  must  be  under  such 
circumstances,  as  that  the  owner  might  maintain  an  action  of 
trespass.  It  follows,  therefore,  that  the  prosecutor  must  be  in  the 
actual  or  constructive  possession  of  the  property  at  the  time  of 
the  taking.  The  application  of  these  principles  has  been  a  fruit- 
ful source  of  litigation,  and  distinctions  and  refinements,  which 
have  rendered  the  administration  of  criminal  justice  in  this  class 
of  cases  exceedingly  difficult.  People  v.  McDonald,  43  N.  Y. 
61.  And  without  this  element  the  offense  is  not  complete.  1 
Hawk.  P.  C.  p.  108,  §  1;  2  Russell,  Crimes  (5th  Am.  ed.)  95; 
Eilderbrand  v.  People,  56  N.  Y.  394,  15  Am.  Rep.  435.  Even 
although  the  owner  is  induced  to  part  with  his  property  by  fraudu- 
lent means,  yet  if  he  actually  intends  to  part  with  it,  and  delivers 
np  possession  absolutely,  it  is  not  larceny.  Smith  v.  People,  53 
K  Y.  Ill,  13  Am.  Rep.  474;  Loomis  v.  People,  67  N.  Y.  322, 
23  Am.  Rep.  123. 

It  is  doubtless  a  general  rule  that  every  larcenous  taking  must 
be  such  as  that  trespass  would  lie  therefor.  Then  another  is,  that 
trespass  will  not  lie,  unless  the  owner  of  the  property  is  in  the 
actual  or  constructive  possession  at  the  time  of  taking.  Then 
another,  that  such  possession  must  have  existed  apart  from  the 
charge  of  the  property  of  the  custodian;  and  that  neither  the 
civil  nor  the  criminal  action  will  lie,  when  such  possession  has 
been  had  only  through  his  custody  of  it.  But  there  have  been 
some  modifications  of  these  rules.  One  is,  that  larceny  may  be 
charged,  in  such  case,  when  the  felonious  appropriation  is  after 
the  property  reaches  its  ultimate  destination.  People  v.  Phelps, 
72  N.  Y.  334. 

§  450.  Corpus  Delicti  must  be  Shown. — Every  criminal 
charge  necessarily  involves  two  distinct  propositions:  (1)  That  a 
criminal  act  has  been  committed;    (2)  that  the  guilt  of  such  act 

•were  equally  applicable  to  a  misdemeanor.  The  learned  county  judge  very 
properly  and  fully  recognized  the  serious  importance  of  this  question  when  he 
stayed  the  execution  of  the  sentence  pending  an  appeal." 

The  presiding  justice  Learned  entered  a  vigorous  dissent  from  the  conclu- 
sions of  his  associates.  While  I  have  no  wish  to  intrude  upon  this  controversy, 
I  cannot  refrain  from  the  observation  that  on  principle  and  authority,  the  dis- 
senting view  must  be  regarded  as  correct.  The  very  opening  sentence  of  Judge 
Learned's  opinion  is  so  ruthlessly  logical,  as  to  silence  all  argument  in  favor  of 
the  contrary  rule.  He  says:  "  I  cannot  see  why  it  is  not  as  felonious  to  take 
another's  property,  with  intent  to  injure  him,  as  to  do  the  same  act  in  order  to 
benefit  the  taker.     Indeed,  t/ce  former  is  the  more  malicious  act  of  the  two." 


LARCENY.  731 

■attaches  to  the  particular  person  charged  with  the  commission  of 
the  offense.  In  cases  of  larceny  it  is,  of  course,  essential  for  the 
prosecution  to  prove  that  the  property  was  feloniously  taken  from 
the  person  named  in  the  indictment  as  the  owner.  "It  must 
appear  that  the  goods  were  stolen  from  the  prosecutor;  and  if  he, 
being  a  witness,  cannot  swear  to  the  loss  of  the  articles  alleged  to 
have  been  stolen  from  him,  the  prisoner  must  be  acquitted."  3 
Greenl.  Ev.  §  161. 

In  what  manner  may  this  proof  be  made '.  Must  it  always  be 
direct  and  positive  ?  Is  it  absolutely  essential,  in  all  cases,  that  the 
proof  of  the  corpus  delicti  should  be  first  established  independent 
of  the  other  elements  of  the  offense?  While  it  is  true  that  a  per- 
son charged  with  the  commission  of  a  criminal  offense  is  not  called 
upon  to  answer  the  charge  without  satisfactory  proof,  upon  the 
part  of  the  prosecution,  of  the  corpus  delicti,  yet  it  is  not  essen- 
tial, in  all  cases,  that  there  should  be  any  direct  evidence  upon  this 
point. 

Many  of  the  eases  are  referred  to  in  a  note  to  1  Bishop.  Crim. 
Proc.  §  1071.  Some  of  them  are  cases  like  People  v.  Williams, 
•57  Cal.  108,  where  no  evidence  of  any  kind  was  offered  upon  that 
point.  Bishop  concludes  the  section  by  saving:  "If  we  look  at 
the  matter  as  one  of  legal  principle,  we  can  hardly  fail  to  be  con- 
vinced that  while  the  corpus  delicti  is  a  part  of  the  case  which 
should  always  receive  careful  attention,  and  no  man  should  be 
CQnvicted  until  it  is  in  some  way  made  clear  that  a  crime  has  been 
committed,  yet  there  can  lie  no  one  kind  of  evidence  to  be  always 
demanded  in  proof  of  this  fact  any  more  than  of  any  other.  If 
the  defendant  should  not  be  convicted  when  there  has  been  no 
crime,  su  equally  should  he  not  be  when  he  has  not  committed 
the  crime,  though  somebody  has;  the  one  proposition  is  as  impor- 
tant to  be  maintained  as  the  other,  yet  neither  should  be  put  for- 
ward to  exclude  evidence  which  in  reason  ought  to  be  convincing 
to  the  understanding  of  the  jury." 

In  State  v.  Keel<  r,  the  court  said:  "The  rule  should  be  adhered 
to,  with  the  utmost  and  strictest  tenacity,  that  the  facts  forming 
the  basis  of  the  offense,  or  corpus  delicti,  must  be  proved  either 
by  direct  testimony,  or  by  presumptive  evidence  of  the  most 
cogent  or  irresistible  kind,  in  one  of  these  methods  the  essential 
fact  or  facts  must  be  established  bey<  nd  a  reasonable  doubt.  But 
if  thus  establisl  i  d,  -  r  if  the  jury  can   be  or  are  satisfied  oJ   such 


732  LAW    OF    EVIDENCE   IN    CELMINAL    CASES. 

facts  beyond  this  reasonable  doubt,  it  matters  not  whether  they 
are  conducted  to  this  result  by  direct  or  positive  evidence.  In 
other  words,  while  the  proof  should  be  clear  and  distinct,  it  is  not 
necessary  that  it  should  be  direct  and  positive;  for  while  that 
which  is  direct  might  be  more  satisfactory,  less  liable  to  deceive 
and  mislead,  this  goes  to  its  weight  or  effect,  and  by  no  means 
establishes  that  in  no  other  way  can  the  essential  facts  be  shown 
with  the  requisite  distinctness  and  clearness."     28  Iowa,  553. 

The  fact  that  the  corpus  delicti  may  be  established  by  circum- 
stantial evidence  is  well  settled.  Burrill,  Circ.  Ev.  680,  734;. 
Wills,  Circ.  Ev.  201;  Reg.  v.  Burton,  Dears.  C.  C.  282;  Rex  v. 
Burdett,  4  Barn.  &  Aid.  122;  McCullough  v.  State,  48  Ind.  112; 
Brown  v.  State,  1  Tex.  App.  155;  Roberts  v.  State,  <il  Ala.  401;. 
State  v.  Ah  Chuey,  14  IsTev.  92,  33  Am.  Rep.  530;  State  v.  Love- 
less, 17  Nev.  427,  and  authorities  there  cited. 

§  451.  What  may  be  Shown  when  Identity  is  in  Question. 

— It  is  an  established  rule  of  evidence,  that,  "when,  on  a  trial  for 
larceny,  identity  is  in  question,  testimony  is  admissible  to  show 
that  other  property,  which  had  been  stolen  at  the  same  time,  was 
also  in  the  possession  of  the  defendant  when  he  had  in  possession 
the  property  charged  in  the  indictment."  Whart.  Am.  Crim.  L. 
^  50.  This  principle  is  sustained  by  reason  as  well  as  authority. 
When  several  articles  are  taken  at  one  time,  and  "the  transaction 
I  in  motion  by  a  single  impulse  and  operated  by  a  single  unin- 
termittent  force,  it  forms  a  continuous  act.  and  hence  must  «be 
treated  as  one  larceny,  not  susceptible  of  being  broken  up  into  a 
series  of  indictments,  no  matter  how  long  a  time  the  act  may 
occupy."  2  "Whart.  Am.  Crim.  L.  §  1817.  The  court  of  North 
Carolina  has  gone  further,  and  allowed  evidence  of  a  different 
offense  of  the  same  character,  and  connected  with  that  charged 
in  the  indictment,  in  order  to  show  guilty  knowledge,  where  the 
intent  is  of  the  essence  of  that  charged.  State  v.  Murphy,  84  1ST. 
C.  742;  State  v.  Thompson,  97  X.  C.  490;  State  v.  Parish,  104 
X.  C.  679 ;  1  Whart.  Am.  Crim.  L.  §  649. 

In  People  v.  Ball,  14  Cal.  101,  73  Am.  Dec.  631,  the  subject 
of  the  larceny  was  described  as  "three  thousand  dollars  lawful 
money  of  the  United  State-.'*  The  court  said:  "This  description 
is  not  sufficient.  In  an  indictment  for  larceny,  money  should  be 
described  as  so  many  pieces  of  the  current  gold  or  silver  coin  of 
the  country,  of  a  particular  denomination,  according  to  the  facts, 


LARCENY.  733 

The  species  of  coin  mnst  be  specified.     Arckb.  Crim.  Pr.  &  PI. 

61;  Whart.  Am.  Crim.  L.  132."     See  Barton,  v.  State,  29  Ark.  68. 

§  452.  Recent   Possession    of   Stolen    Property  may  be 

Shown. — In  a  prosecution  for  larceny,  the  fact  that  the  stolen 
property  is  found  upon  the  person  of  the  defendant  can  always  be 
given  in  evidence  against  him,  but  the  strength  of  the  presump- 
tion which  it  raises  against  the  accused  depends  upon  all  the  cir- 
cumstances surrounding  the  case.  Englemam.  v.  State,  2  Ind.  91, 
52  Am.  Dec.  494.  In  the  case  of  State  v.  Hodge,  50  X.  II.  510, 
a  leading  and  well  considered  case,  the  supreme  court  of  Xew 
Hampshire  decided  that  the  presumption  thus  raised  was  one  of 
fact,  and  not  of  law;  that  there  is  no  legal  rule  on  the  subject; 
that  much  depends  on  the  natuz'e  of  the  property  stolen,  and  the 
circumstances  of  each  particular  case;  that  "it  is  a  presumption 
established  by  no  legal  rule,  ascertained  by  no  legal  test,  measured 
by  no  legal  standard,  bounded  by  no  legal  limits.  It  has  none  of 
the  characteristics  of  law.  "Whether  it  be  found  by  the  judge  or 
the  jury,  the  judge  and  the  jury  must  be  equally  unconscious  of 
finding  in  it  any  semblance  of  a  legal  principle,  however  much 
good  sense  may  appear  in  the  result  arrived  at.  Being  a  presump- 
tion of  fact,  it  should,  according  to  our  practice,  be  drawn  by  the 
jury,  and  not  by  the  court."  "We  regard  this  case  as  well  sus- 
tained by  the  adjudications. 

There  can  be  no  doubt  as  a  general  proposition  of  law,  that  the 
exclusive  possession  of  goods  recently  stolen  is  sufficient  to  put  an 
accused  person  upon  his  defense.  McLain  v.  State,  IS  Xeh.  154. 
It  is  not  very  well  settled  what  i.-  a  recent  possession.  Neither  is 
it  positively  established  whether  the  presumption  mentioned  so 
often  in  the  books  and  decisions,  is  a  presumption  of  law  or  fact, 
Mr.  Bishop  contends  that  upon  principle  it  is  only  a  presumption 
of  fact,  the  inference  to  be  drawn  by  the  jury;  and  the  writer 
agrees  with  Mr.  Bishop  on  this  point.  2  Bishop,  Crim.  Proc.  (2d 
ed.)  §§  740,  745;  People  v.  Gassaway,  23  Cal.  51;  Curtis  v.  & 
6  Coldw.  9;  State  v.  Williams,  47  X.  C.  194.  If  a  presumption 
of  law,  it  is  only  in  those  cases  where  it  is  manifest  that  the  stolen 
goods  have  come  to  the  possessor  by  his  own  act  or  with  his  un- 
doubted concurrence.  The  original  cases  mentioned  which  were 
sufficient  to  raise  a  presumption  of  law  are  as  follows  :  "Upon  an 
indictment  for  stealing  in  a  dwelling-house,  the  defendant  is  ap- 
prehended a  few  yards  from  the  outer  door  with  the  stolen  goods 


734  LAW    OF    EVIDENCE   IN    CRIMINAL    CASES. 

in  his  possession."  "A  gentleman  has  his  watch  stolen  from  his. 
fob  in  a  crowd,  and  shortly  thereafter  it  is  found  concealed  about 
the  person  of  one  who  can  give  no  rational  account  of  how  he 
obtained  it."     Malone,  Crim.  Briefs,  396. 

"Generally  whenever  the  property  of  one  man,  which  has  been 
taken  from  him  without  his  knowledge  or  consent,  is  found  upon 
another,  it  is  incumbent  upon  that  other  to  prove  how  he  came  by 
it;  otherwise  the  presumption  is  that  he  obtained  it  feloniously." 
2  East,  Crim.  L.  656.  This  was  cited  with  approbation  in  the 
case  of  State  v.  Furlong,  19  Me.  225,  and  its  accuracy  as  a  gen- 
eral legal  proposition,  is  sustained  by  the  decision  made  in  the 
case  of  Knickeroacker  v.  People,  43  N.  Y.  177,  1  Cow.  Crim. 
Rep.  287. 

Evidence  in  explanation  of  such  possession  may  fall  short  of  a 
satisfactory  explanation,  and  yet  be  sufficient  to  acquit.  If  it 
creates  a  reasonable  doubt,  it  practically  rebuts  the  presumption 
of  guilt.  Olackner  v.  State,  33  Ind.  412;  Way  v.  State,  35  Ind. 
409;  Smith  v.  State,  5s  Ind.  340. 

It  is  well  settled  law  that  the  exclusive  possession  of  a  whole  or 
some  part  of  stolen  property  by  the  prisoner,  recently  after  the 
theft,  is  sufficient  when  standing  alone  to  cast  upon  him  the  bur- 
den of  explaining  how  he  came  by  it,  or  of  giving  some  explana- 
tion; and  if  he  fail  to  do  so,  to  warrant  the  jury  in  convicting  him 
of  the  larceny.  Such  is  and  has  been  the  practice  of  the  criminal 
courts  in  this  country  and  England,  as  appears  by  the  reports  and 
by  elementary  writers.  Best,  Presumptions,  (31  Law  Lib.  N.  S. 
*3i  »4).  In  the  5th  ed.  p.  292  of  this  work,  the  rule  is  repeated 
and  affirmed;  but  the  author  seems  disposed  to  limit  the  rule,  on 
the  authority  of  Bentham.     3  Bentham,  Judicial  Ev.  39-40. 

But  the  reasoning  of  Bentham  has  been  founded  upon  the  idea 
that  the  possession  is  frequently  not  exclusive;  but  may  be  in 
many,  therefore  not  criminative  of  either,  and  other  illustrations, 
showing  the  necessity  of  exclusive  and  conscious  possession,  etc. 
See  also  1  Cowen  &  Hill's  Notes,  p.  425,  note  325.  These  are 
sound  limitations.  Wills,  Circ.  Ev.  (4th  ed.)  53,  54.  Russell  on 
Crimes  says,  in  such  case,  "it  is  incumbent  on  the  person  so  found 
hi  possession,  to  prove  how  he  came  by  it,  otherwise  the  presump- 
tion is  that  he  obtained  it  feloniously."  Russell,  Crimes,  (4th  ed. 
by  Graves)  337,  *123;  2  East,  P.  C.  656.  Greenleaf,  in  his  first 
volume  lays  down  the  rule  broadly  that  "possession  of  the  fruits 


LARCENY.  735 

of  crime,  recently  after  its  commission,  is  prima  facie  evidence  of 
guilty  possession;  and  if  unexplained,  either  by  direct  evidence, 
by  the  attending  circumstances,  by  the  habits  of  life  and  charac- 
ter of  the  prisoner  or  otherwise,  it  is  taken  as  conclusive."  1 
Greenl.  Ev.  (rev.  ed.)  §  34.  In  his  third  volume,  he  modifies  this 
rule,  but  without  any  authority  except  a  reference  to  Best,  Pre- 
sumptions. Wills,  Circ.  Ev.  and  Alison,  Principles  of  the  Crim- 
inal Law  of  Scotland,  p.  320,  and  they  do  not  sustain  him. 

§  453.  Evidence  of  other  Similar  Offenses. — If  other 
criminal  acts  can  be  received,  as  they  most  certainly  have  been, 
with  the  sanction  of  the  courts,  for  the  purpose  of  proving  the 
intent  with  which  the  act  charged  as  criminal  was  committed,  no 
good  reason  exists  for  excluding  it  in  prosecutions  for  larceny. 
The  intent  is  the  vital  fart  to  be  ascertained;  and  other  acts, 
plainly  within  one  common  purpose  or  design,  have  been  allowed 
as  legal  evidence  of  it.  In  treason,  murder,  robbery,  arson,  em- 
bezzlement, fraud,  receiving  stolen  goods  {Copp<  rman  v.  People, 
1  Hun,  15,  affirmed  in  56  X.  Y.  591)  and  other  cases,  such  acts, 
as  proof  of  intent,  have  been  received,  and  no  reason  appears  why 
larceny  should  not  be  included  in  the  same  principle. 

In  State  v.  Renton,  15  N.  H.  174,  Gilchrist,  J.,  very  aptly  re- 
marked :  ''Where  a  person  is  charged  with  an  offense,  it  is  im- 
portant to  him  that  the  facts  laid  before  the  jury  should  consist 
exclusively  of  the  transaction  which  forms  the  subject  of  the  in- 
dictment, which  alone  he  can  be  expected  to  be  prepared  to  an- 
swer. It  is,  therefore,  not  competent  for  the  prosecutor  to  give 
evidence  of  facts  tending  to  prove  another  distinct  offense,  for  the 
purpose  of  raising  an  inference  that  the  prisoner  has  committed 
the  crime  in  question.  Nor  is  it  competent  to  show  that  he  has  a 
tendency  to  commit  the  offense  with  which  he  is  charged."  StaU 
v.  Lapage,  57  N.  H.  245,  24  Am.  Kep.  69. 

§  454.  Case  of  Reg.  v.  Thomas  Considered. — One  of  the 
most  eminent  of  the  English  nisiprius  judges  of  the  present  day 
has  imparted  an  element  of  distrust  to  this  entire  subject'that has 
been  of  extended  influence  in  this  country,  and  is  widely  quoted 
as  sustaining  a  position  of  great  importance  to  one  accused  of 
crime.  The  decision  referred  to  is  that  of  Reg.  v.  Thomas,  '•> 
Car.  &  P.  741.  In  that  case  the  prosecutor  gave  the  prisoner  a 
sovereign  to  got  changed,  the  prisoner  failed  to  materialize  with 
the  equivalent,  and  the  court  held  that  he  could  not  be  convicted 


736  LAW    OF    EVIDENCE    IN    CRIMINAL    CASES. 

of  larceny  because  the  prosecutor  had  voluntarily  divested  him- 
self without  the  least  expectation  of  its  return. 

It  is  idle  to  speculate  upon  the  reasoning  which  inspired  this 
decision.  Suffice  it  to  say  that  it  has  been  unqualifiedly  con- 
demned by  a  court  of  very  high  repute  in  this  country. 

It  is  an  error  to  suppose  that  the  doctrine  of  the  case  of  Reg. 
v.  Thomas  had  been  adopted  by  the  New  York  court  of  appeals. 
In  the  case  of  Hilderbrand  v.  People,  56  N.  Y.  394, 15  Am:  Rep. 
435,  where  this  court  is  supposed  to  have  adopted  that  rule,  the 
plaintiff  in  error  had  been  convicted  of  stealing  a  $50  bill  handed 
him  to  take  out  ten  cents  in  payment  for  a  glass  of  soda.  The 
prisoner  put  down  a  few  coppers  upon  the  counter,  and,  when 
asked  for  the  change,  took  the  prosecutor  by  the  neck  and  shoved 
him  out  of  doors  and  kept  the  money.  The  prisoner  was  con- 
victed, and  the  conviction  was  affirmed  by  this  court.  The  case 
of  Reg.  v.  Thomas  was  cited  and  relied  upon  by  the  prisoner. 
The  facts  of  the  two  cases  differed,  and,  after  criticising  the  case 
of  Reg.  v.  Thomas  as  a  nisi  prius  case  and  not  authoritative  for 
that  reason,  the  court  pointed  out  the  difference  between  the 
facts  of  the  case  then  being  considered,  without  overruling  or 
affirming  the  doctrine  of  Reg.  v.  Than  nix. 

In  Loomis  v.  People,  67  N.  Y.  329,  23  Am.  Rep.  123,  the  case 
of  Reg.  v.  Thomas,  was  again  referred  to,  and  this  court  there  de- 
clared that  the  weight  of  authority  was  decidedly  opposed  to  the 
doctrine  of  that  case,  and  again  affirmed  a  conviction  in  which 
that  ease  was  relied  upon  as  an  authority  for  reversal.  The  de- 
risions of  this  court  have  been  uniformly  against  the  doctrine  of 
Reg.  v.  Thomas.  In  People  v.  McDonald,  43  N".  Y.  61,  this 
court  held  that :  "If  money  or  property  is  delivered  by  the 
owner  to  a  person  for  mere  custody  or  for  some  specific  purpose, 
the  legal  possession  remains  in  the  owner,  and  the  criminal  con- 
version of  it  by  the  custodian  is  larceny."  Again  in  Smith  v. 
People,  53  X.  Y.  Ill,  13  Am.  Rep.  474,  it  was  said  by  Allen,  J.. 
that  "when  the  delivery  of  goods  is  made  for  a  single  and  specific 
purpose  the  posses-inn  is  still  supposed  to  reside,  not  parted  with, 
in  the  first  proprietor."  The  rule  of  Reg.  v.  Thomas  was  never 
adopted  by  this  court,  is  not  good  law,  and  should  be  disregarded. 

§  455.  Evidence  of  Value. — Without  proof  of  the  value  of 
stolen  property,  there  can  be  no  conviction  of  larceny;  and  unless 
the  record  shows  that  there  was  such  proof,  the  court  will  set 


LARCENY. 


aside  a  conviction,  although  the  error  was  not  pointed  out  by  the 
counsel;  and  this,  notwithstanding  the  property  stolen  was  cur- 
rency as  the  United  States  silver  certificates.  It  is  always  neces- 
sary to  prove  the  value  of  the  property  alleged  to  have  been 
stolen,  in  order  to  determine  the  grade  of  the  offense  and  the 
penalty  to  be  imposed;  and  in  the  absence  of  any  evidence  upon 
the  subject  of  such  value,  the  court  must  presume  it  to  be  nominal 
merely.  But  where  the  punishment  of  the  offense  charged  does 
not  depend  on  the  value  of  the  articles  taken,  proof  of  value  is 
unnecessary,  and  the  jury  may  ascertain  whether  or  not  the 
articles  are  of  any  value  by  inspecting  them.  Rapalje,  Larceny  & 
Kindred  Offenses,  §  140,  citing  Ware  v.  State,  33  Ark.  567; 
Whitehead  v.  State,  20  Fla.  841;  Radford  v.  State,  35  Tex.  15; 
Hall  v.  State,  15  Tex.  App.  40;  Moore  v.  State,  IT  Tex.  App.  176; 
State  v.  Krieg<  r,  68  Mo.  98;  Simpson  v.  State,  10  Tex.  App.  6S1; 
Powell  v.  State,  88  Ga.  32;  Stokes  v.  State,  58  Miss.  677;  People 
v.  Griffin,  38  How.  Pr.  47:>;  Com.  v.  Burke,  12  Allen.  182. 

The  value  of  an  article  stolen  is  its  market  value;  and  evidence 
that  it  is  worth  S2Q  to  its  owner,  and  worth  nothing  to  anybody 
else,  does  not  show  its  market  value  to  be  $20.  To  be  of  the 
market  value  of  S2<>  it  must  be  capable  of  being  sold  for  that  sum 
at  a  fairly  conducted  sale, — at  a  sale  conducted  with  reasonable 
care  and  diligence  in  respect  to  time,  place  and  circumstances,  for 
the  purpose  <>f  obtaining  the  highest  price.  Locke  v.  State,  32  N. 
H.  106;  State  v.  Ladd,  32  X.  11.  110;  State  v.  Goodrich,  46  N. 
H.  186;  Cocheco  Mfg.  Co.  v.  Strafford,  51  X.  H.  481;  State  v. 
James,  58  X.  H.  67. 

If  the  value,  as  alleged  in  the  indictment,  be  the  same  as  proved 
upon  the  trial,  the  verdict  of  guilty,  as  alleged  in  the  indictment, 
is  proper.  If  the  value  alleged  in  the  indictment  should  be  differ- 
ent from  that  established  from  the  evidence,  the  jury,  in  render- 
ing a  verdict  of  guilty,  may  find  and  state  with  their  verdict  the 
amount  of  loss  resulting  from  the  offense,  etc.  This  view,  as  to 
the  effect  of  a  general  verdict,  appears  to  me  to  be  sustained  by 
the  reasoning  in  the  case  of  Williams  v.  People,  24  N.  Y.  4(»5. 
It  is  true  that  the  question  was  not  raised  in  that  case,  but  it 
would  appear  to  follow  from  the  argument  employed.  In  Wis- 
consin, however,  the  question  appears  to  have  been  settled  in  tin; 
case  ot  State  v.  White,  25  Wis.  359,  in  which  it  was  held  thai  a 
o-eneral  verdict  of  guilty  is  a  finding1  of  the  truth  of  all  the  ma- 
47 


738  LAW    OF    EVIDENCE    IN    CRIMINAL    CASES. 

terial  averments  in  the  indictment,  including  the  averment  of 
value  when  value  is  material.  To  the  same  effect  also  is  the  case 
of  Schoonover  v.  State,  17  Ohio  St.  294. 

In  charging  a  larceny  of  several  articles  of  the  same  kind,  it  is- 
not  necessary  to  state  the  number  nor  to  allege  the  value  of  each 
article.  It  is  sufficient  to  allege  a  larceny  of  divers  of  the  articles 
of  an  aggregate  value.  This  is  a  common  mode  of  charging 
larceny  of  bank-notes  and  of  coin.  Com.  v.  Hussey,  111  Mass. 
432;  Com.  v.  Stebbins,  8  Gray,  492;  Com.  v.  Grimes,  10  Gray, 
470,  71  Am.  Dec.  666;  Com.  v.  Gallagher,  16  Gray,  240;  Com, 
v.  Butts,  124  Mass.  449;  Com.  v.  Collins,  138  Mass.  483. 

§  456.  New  York  Rule  as  to  Name  of  Party  Defrauded. — 

Formerly,  before  the  adoption  of  the  code  of  criminal  procedure, 
it  was  the  inflexible  rule  that  the  name  of  the  person  in  whom 
property  was  laid,  although  matter  of  description,  must  be  proved 
according  to  the  indictment.  But  the  rule  is  now  changed  by  the 
code  of  criminal  procedure.     N.  Y.  Code  Crim.  Proc.  §  293. 

The  constitutionality  of  this  provision  was  recognized  without 
question  in  People  v.  JPoucher,  1  N.  Y.  Crim.  Rep.  544;  and  was 
upheld  by  a  divided  court  in  People  v.  Johnson,  4  N.  Y.  Crim. 
Rep.  591. 

The  constitutionality  of  similar  statutory  provisions  has  been 
recognized^without  question  by  the  highest  courts  of  several  of 
the  states.  Mulrooney  v.  State,  26  Ohio  St.  326;  Com.  v.  G '  Brieny 
2  Brewst.  566;  Haywood  v.  State,  47  Miss.  1. 

§457.  Review  of  Miscellaneous  Authorities. — If  property 
is  parted  with  voluntarily  upon  contract,  the  offense  is  not  larceny^ 
Penal  Code,  §  528;  People  v.  Morse,  3  K  Y.  Crim.  Rep.  104; 
Zink  v.  People,  77  K  Y.  114,  33  Am.  Rep.  589;  People  v. 
Cruger,  102  N.  Y.  510,  55  Am.  Rep.  830;  Moiorey  v.  Walsh,  8 
Cow.  238;  Andrews  v.  Bieterieh,  14  Wend.  31;  Boss  v.  People, 
5  Hill,  294;  Smith  v.  People,  53  N.  Y.  Ill,  13  Am.  Rep.  474; 
Thome  v.  Turch,  94  N.  Y.  90,  46  Am.  Rep.  126;  People  v. 
Bal-er,  96  K  Y.  340;  Kelly  v.  People,  6  Hun,  509;  Cowen, 
Crim.  Dig.  320. 

It  is  not  larceny  if  the  owner  intends  to  part  with  the  property, 
and  deliver  the  possession  absolutely,  although  he  has  been  induced 
to  part  with  the  goods  by  fraudulent  means.  If  by  trick  or 
artifice  the  owner  of  property  is  induced  to  part  with  the  custody 
or  naked  possession  to  one  who   receives  the   property  anirno 


LARCENY.  739 

furandi,  the  owner  still  meaning  to  retain  the  right  of  property, 
the  taking  will  be  larceny;  but  if  the  owner  part  with  not  only 
the  possession,  but  the  right  of  property  also,  the  offense  of  the 
party  obtaining  them  will  not  be  larceny,  but  that  of  obtaining 
goods  by  false  pretenses.  Ross  v.  People,  5  Hill,  394;  L&wer  v. 
( 'om.  15  Serg.  &  R,  93;  2  Russell,  Crimes,  28. 

In  prosecutions  for  larceny  and  receiving,  several  articles  may 
be  joined  in  a  count,  and  the  proof  of  one  of  them  will  sustain 
the  indictment.  A  nolle  prosequi  maybe  entered  on  a  portion 
of  a  divisible  count,  even  after  verdict.  If  several  articles  are 
embraced  in  a  count  for  larceny,  and  one  of  them  is  sufficiently 
described  and  the  others  are  not,  it  is  not  necessary  to  quash  the 
indictment.  In  such  case,  it  is  proper  to  amend  by  striking  out 
the  articles  defectively  specified,  or  to  enter  a  nolle  prosequi  as  to 
them.  Indeed,  to  quash  an  indictment  on  such  ground  might 
effectually  defeat  justice,  as  where  the  statute  of  limitations  would 
be  an  answer  to  a  new  bill  for  the  larceny  of  the  article  which 
was  adequately  described  in  the  quashed  indictment.  A  defective 
description  of  an  article  in  a  divisible  count  for  larceny  is  analo- 
gous to  a  bad  count  in  an  indictment.  In  the  latter  case  a  general 
verdict  will  be  supported,  and  referred  to  the  good  counts  unless 
it  appear  that  evidence  was  received  which  was  admissible  only 
under  the  bad  counts.      Corn.  v.  Johnson,  133  Pa.  293. 

Where  an  indictment  for  grand  larceny  charged  the  act  con- 
stituting the  crime  thus,  that  defendant  lt  unlawfully  and  feloni- 
ously did  steal,  take  and  carry  away"  the  property  described. 
Held,  that  the  indictment  could  not  be  sustained  by  proof  that  the 
defendant  obtained  possession  of  the  property  from  the  owner 
upon  a  sale  on  credit  induced  by  false  and  fraudulent  representa- 
tions.    People  v.  Dumar,  106  N.  Y.  502. 

The  statute  defining  larceny  is  not  a  rule  of  pleading,  but  a 
guide  to  the  conduct  of  the  trial,  prescribing  the  proofs  requisite 
to  a  conviction  ;  and  an  indictment  charging  larceny  in  the  com- 
mon law  form,  if  sustained  by  evidence,  justifies  a  conviction  for 
larceny  committed  in  any  of  the  ways  now  known  to  the  law. 
People  v.  Enoch,  13  Wend.  17*'>.  27  Am.  Dec.  l!»7;  /'<<>/>/,  v. 
Whitt ,  22  Wend.  1  76  ;  Fitzg<  rrold  v.  /',  oplt ,  37  X.  V.  413  ;  A'  n- 
nedy  v.  People,  39  N.  Y.  245;  Cox  v.  People,^  X.  Y.  500; 
People  v.  Conroy,  !>7  X.  V.  62. 

Where  the  owner  of  personal   property  entrusts  it  to  another, 


740  LAW    OK    EVIDENCE    IN    CRIMINAL    CASES. 

to  procure  a  loan  thereon,  and  the  latter  procures  the  loan  as 
authorized,  his  omission  to  account  for,  or  appropriation  of  the 
proceeds  of  the  loan  will  not  sustain  an  indictment  against  him 
for  larceny  of  the  property.  People  v.  Cruger,  102  N.  Y.  510, 
55  Am.  Rep.  830. 

Evidence  of  embezzlement  will  not  support  a  conviction  of 
larceny.  Com.  v.  Simpson,  9  Met.  13S ;  Com.  v.  King,  9  Cush. 
284. 

In  People  v.  McDonald,  43  N.  Y.  61,  it  is  said:  "If  money 
or  property  is  delivered  by  the  owner  to  a  person  for  mere  cus- 
tody, or  for  some  specified  purpose,  the  legal  possession  remains 
in  the  owner,  and  the  criminal  conversion  of  by  the  custodian  is 
larceny.  A  familiar  illustration  of  this  rule  is  the  case  of  servants 
entrusted  with  the  care  of  property  belonging  to  their  masters." 
In  Smith  v.  People,  53  JS".  Y.  Ill,  13  Am.'  Rep.  474,  it  was  said 
by  Allen,  J.:  "The  rule  is,  that  when  the  delivery  of  goods  is 
made  for  a  single  and  specific  purpose,  the  possession  is  still  sup- 
posed to  reside,  not  parted  with,  in  the  first  proprietor." 

In  theft,  general  or  from  the  person,  the  taking  must  be  with- 
out the  consent  of  the  owner,  or,  though  lawful  (with  consent) 
the  possession  of  the  property  must  be  obtained  by  some  false 
pretext,  or  with  intent  to  deprive  the  owner  of  the  value  of  the 
property  and  appropriate  it  to  the  nse  of  the  taker,  with  an  actual 
appropriation.  If  there  be  consent  to  the  taking,  and  this  con. 
sent  is  not  obtained  by  false  pretext,  or  there  is  no  intent  to 
deprive  the  owner  of  the  value,  accompanying  the  taking,  there 
can  be  no  theft.     Graves  v.  State,  25  Tex.  App.  333. 

"  If  a  man  find  goods  that  have  actually  been  lost,  or  are  rea- 
sonably supposed  by  him  to  have  been  lost,  and  appropriates 
them,  with  intent  to  take  the  entire  dominion  over  them,  really 
believing,  when  he  takes  them,  that  the  owner  cannot  be  found, 
it  is  not  larceny.  But  if  he  takes,  with  like  intent,  though  lost, 
or  reasonably  supposed  to  be  lost,  but  reasonably  believing  that 
the  owner  can  be  found,  it  is  larceny."  Baker  v.  State,  29  Ohio 
St.  184. 

In  Com.  v.  Uprirhard,  3  Gray,  434,  G3  Am.  Dec.  762,  the 
property  had  been  stolen  in  the  province  of  Nova  Scotia,  and 
thence  carried  by  the  thief  into  Massachusetts.  The  defendant 
was  convicted  of  larceny,  charged  to  have  been  committed  in  the 
'atter  state.     This  conviction  was  set  aside  by  a  unanimous  court, 


LARCENY.  741 

although  two  decisions  had  been  made  by  the  same  court  confirm- 
ing convictions,  where  the  property  had  been  stolen  in  a  sister 
state,  and  afterward  brought  by  the  thief  into  that  commonwealth. 
Without  overruling  the  older  cases,  Chief  Justice  Shaw,  in  deliv- 
ering the  opinion  of  the  court,  distinguished  between  the  two 
classes  of  cases.  The  following  cases  are  in  point,  that  a  state, 
into  which  stolen  goods  are  carried  by  a  thief  from  a  sister  state, 
has  no  jurisdiction  to  convict  for  the  larceny  of  the  goods,  and  a 
fortiori  when  the  goods  were  stolen  in  a  foreign  country. 

In  New  York:  People  v.  Gardiner,  2  Johns.  477;  Peoples. 
SeJu  nek,  2  Johns.  479.  The  rule  was  afterwards  changed  in  that 
state  by  statute.  New  Jersey:  Stab  v.  L<  Blanch,  31  N.  J.  L.  82. 
Pennsylvania:  Simmons  v.  Com.  5  Binn.  617.  North  Carolina: 
State  v.  Brown,  2  N.  C.  100,  1  Am.  Dec.  548.  Tennessee: 
Simpson  v.  State,  4  Humph.  456.  Indiana :  Beall  v.  State,  15 
Ind.  378.     Louisiana  :   State  v.  Reonnals,  14  La.  Ann.  276. 

There  are  two  cases  sustaining  convictions  for  larceny  in  the 
states,  where  the  property  had  been  stolen  in  the  British  prov- 
inces:  State  v.  Bartlett,  11  Vt.  650,  and  State  v.  Underwood,  49 
Me.  181,  77  Am.  Dec.  254;  Stanley  v.  State,  21  Ohio  St.  166,  15 
Am.  Kep.  6u4. 


CHAPTER   LIII. 

EMBEZZLEMENT,  ROBBERY  AND  BURGLARY. 

§  458.  Embezzlement  Defined. 

459.  What  must  be  Established  to  Warrant  Conviction. 

460.  Evidence  of  other  Fraudulent  Acts  Admissible. 

461.  The  Term  "  Robbery"  Defined. 

462.  What  Evidence  is  Competent  to  Establish. 

463.  Yieivs  of  Professor  Greenleaf. 

464.  The  Terms  "Fear"  and  "Violence"  Considered. 

465.  Description  of  Property  Stolen  not  Required. 

466.  The  Terms  "Burglary"  and  "Break"  Defined. 

467.  What  the  State  must  Prove. 

468.  Presumptive  Evidence  of. 

469.  What  is  "Constructive  Breaking" 

470.  Evidence  of  Former  Attempts. 

471.  Partial  Review  of  Late  Decisions. 

§  458.  Embezzlement  Defined.'  —  Embezzlement  is  distin- 
guished from  larceny  properly  so  called  as  being  committed  in 
respect  of  property  which  is  not  at  the  time  in  the  actual  or  legal 
possession  of  the  owner.     1  Burrill,  Law  Diet.  415. 

The  fraudulently  removing  and  secreting  of  personal  property, 
with  which  the  party  has  been  entrusted,  for  the  purpose  of  ap- 
plying it  to  his  own  use.     Bouvier,  Law  Diet.  522. 

The  chattel,  money,  or  valuable  security  embezzled  by  the  pris- 
oner must  be  such  as  has  not  come  to  the  possession  of  his  master; 
if  it  has  come  to  his  possession,  the  offense  is  larceny,  and  not 
embezzlement.     Roscoe,  Crim.  Ev.  445. 

Embezzlement  is  the  fraudulent  appropriation  of  another's 
property  by  one  who  has  the  lawful  custody.  It  is  distinguished 
from  larceny  by  the  fact  of  lawful  custody.  It  is  the  peculiar 
crime  of  those  employed  or  trusted  by  others. 

This  is  not  a  common  law  offense,  but  is  a  general  statutory 
offense.     Browne,  ("rim.  L.  48. 

Larceny  cannot  be  committed  of  things  that  are  not  the  subject 
of  property,  as  of  a  dead  body.  Bex  v.  Duffin,  Russ.  &  R. 
360;  King  v.  Lynn,  2  T.  R.  733. 

742 


EMBEZZLEMENT,  ROBBERY    AND    BURGLARY.  743 

Funds  appropriated  under  a  claim  of  right  are  not  embezzled, 
and  it  may  be  generally  affirmed  that  only  such  property  as  can 
be  the  subject  of  larceny  is  subject  to  embezzlement.  Ross  v. 
Innis,  35  111.  487. 

§  459.  What  must  be  Established  to  Warrant  Convic- 
tion.— To  warrant  the  conviction  of  an  agent  for  the  embezzle- 
ment of  his  principal's  money,  four  facts  must  be  established 
beyond  a  doubt,  to  wit :  First,  The  agency  whereby  the  defend- 
ant was  charged  with  the  duty  of  receiving  the  money;  Second, 
His  receipt  of  his  principal's  money;  Third,  That  he  received  it 
in  the  course  of  his  employment;  and  Fourth,  That  he  embezzled, 
misapplied  or  converted  it  to  his  own  use.  Eapalje,  Larceny  & 
Kindred  Offenses,  §  3S9,  citing  Webb  v.  State,  8  Tex.  App.  310. 

Under  these  rules  it  is  apparent  that  to  sustain  an  indictment 
for  embezzlement  against  the  treasurer  of  a  corporation  for  the 
alleged  conversion  of  it>  moneys,  it  must  be  shown  that  the  money 
came  into  the  possession  of  the  accused  or  under  his  control  by 
virtue  of  his  office  as  treasurer.  Bartow  v.  People,  78  N.  Y. 
377;  United  States  v.  Cruihshank,  92  U.  S.  542,  23  L.  ed.  588; 
Bradlaugh  v.  Reg.  L.  R.  3  Q.  B.  Div.  607. 

§  460.  Evidence  of  other  Fraudulent  Acts  Admissible.— 
Reg.  v.  Richardson,  2  Fost.  &  F.  343,  was  a  charge  of  embez- 
zlement against  a  clerk  who  made  out  weekly  accounts  of  his  pay- 
ments. On  three  occasions  within  six  months  he  entered  the 
payments  correctly,  but,  in  adding  them  up,  made  the  totals  £2 
greater  than  they  were,  and  took  credit  for  the  larger  amounts. 
These  were  'the  cases  on  which  the  indictment  was  founded. 
Evidence  that,  on  a  series  of  occasions  before  and  afterwards, 
precisely  similar  errors  had  been  made  and  advantage  taken  of  by 
him,  was  received  to  show  that  the  errors  in  the  three  instances 
to  which  the  indictments  related  were  intentional  and  fraudulent, 
and  not  accidental.  Com.  v.  Tucherman,  10  Gray,  173,  200,  was 
a  charge. of  embezzlement.  The  court  said  :  "Where  the  intent 
of  the  accused  party  forms  any  part  of  the  matter  in  issue,  evi- 
dence may  always  he  given  of  other  act-  not  in  issue,  provided 
they  tend  to  establish  the  intent  imputed  to  him  in  committing 
the  act."  Coat.  v.Shepard,  1  Allen,  575,  581,  was  another  case 
of  embezzlement.  It  was  held  that  evidence  of  another  act  of 
embezzlement  by  the  defendant,  during  the  same  week,  was  com- 
petent on  the  question  of  intent. 


744  LAW    OF    EVIDENCE    IN    CRIMINAL    CASES. 

§461.  The  Term  "Robbery"  Defined.— " Kobbery  is  the 

unlawful  taking  of  personal  property,  from  the  person  or  in  the 
presence  of  another,  against  his  will,  by  means  of  force,  or  vio- 
lence, or  fear  of  injury,  immediate  or  future,  to  his  person  or 
property,  or  the  person  or  property  of  a  relative  or  member  of  his 
family,  or  of  any  one  in  his  company  at  the  time  of  the  robbery. 
To  constitute  robbery,  the  force  or  fear  must  be  employed  either 
to  obtain  or  retain  possession  of  the  property  or  to  prevent  or 
overcome  resistance  to  the  taking.  If  employed  merely  as  a 
means  of  escape  it  does  not  constitute  robbery.  .  .  .  The 
degree  of  force  is  immaterial."  N.  Y.  Penal  Code,  §§  224,  225. 
See  People  v.  Foley,  9  N.  Y.  S.  R.  24. 

"  The  felonious  and  forcible  taking  from  the  person  of  another, 
of  goods  or  money  to  any  value,  by  violence  or  putting  him  in 
fear."  4  Bl.  Com.  242.  See  also  Bloomer  v.  People,  1  Abb.  App. 
Dec.  140. 

§  462.  What  Evidence  is  Competent  to  Establish.— Evi- 
dence is  competent  which  shows  the  snatching  a  thing  from  the 
hands  of  another,  accompanied  with  violence,  or  threats  creating 
apprehensions  of  bodily  harm,  or  resistance  however  slight,  as  this 
constitutes  robbery.     Evans  v.  State,  80  Ala.  4. 

The  supreme  court  of  Iowa  in  a  recent  case  {State  v.  Calhoun, 
72  Iowa,  432)  in  passing  upon  the  merits  of  certain  instructions 
given  by  the  trial  court  to  the  jury,  has  established  certain  propo- 
sitions relating  to  the  crime  of  robbery  that  directly  involve 
positive  rules  of  evidence.  The  court  says :  "  It  is  not  necesssary, 
in  order  to  constitute  a  stealing  and  carrying  away  'in  the  im- 
mediate presence  of  said  Nellie  Baldwin,'  that  it  should  have  been 
done  (if  done)  in  her  immediate  view,  or  where  she  could  see  it 
done.  And  if  you  find  from  the  evidence,  beyond  a  reasonable 
doubt,  that  the  defendant  made  a  violent  assault  upon  said  Nellie, 
by  choking  her  and  causing  her  to  fall  upon  the  floor  of  one  of  the 
rooms  or  apartments  of  her  house,  and  then  tied  her  hands  and 
feet  for  the  purpose  and  with  the  intention  of  stealing  some  money 
or  property  in  the  house;  and  you  further  so  find  that  she, 
through  fear  of  personal  violence,  told  defendant  where  her 
money  or  watch  was  in  an  adjoining  room  or  rooms;  and  you 
further  so  find  that  thereupon  defendant  passed  through  a  door 
or  doors  into  such  room  or  rooms,  and  did  there,  within  hearing 
of  said  Nellie  Baldwin,  take  and  carry  away  from  said  room  or 


EMBEZZLEMENT,  ROBBERY  AND  BURGLARY.  745 

rooms  the  property  described  in  the  indictment,  or  some  part 
thereof;  and  yon  further  so  find  that  such  property  was  under 
her  immediate  control,  and  that  such  taking,  if  any,  was  against 
the  will  of  the  said  Nellie  Baldwin,  and  was  without  any  right,  or 
claim  of  right,  of  defendant  in  said  property,  and  with  the  intent 
to  deprive  her  thereof, — then  and  in  such  case  there  would  be  a 
sufficient  stealing  and  taking  from  the  'immediate  presence'  of 
the  said  Nellie  Baldwin  within  the  meaning  of  the  law." 

Evidence  of  the  mere  snatching  of  anything  from  the  hand  of 
another  in  the  absence  of  any  struggle  or  resistance  by  the  owner 
or  any  force  or  violence  on  the  part  of  the  thief  is  insufficient  proof 
of  robbery.  McCloskey  v.  People,  5  Park.  Crim.  Rep.  299;  People 
v.  Hall,  6  Park.  Crim.  Rep.  642;  People  v.  McGinty,  24  Hun,  64. 

The  evidence  must  disclose  the  felonious  intent,  and  as  in  cases 
of  larceny,  the  taking  of  the  property  must  be  animo  furandi. 

Where  a  scuffle  takes  place  between  the  prosecutor  and  the 
accused,  in  the  course  of  which  the  former  was  deprived  of  a  ruling 
measure,  his  hat,  and  a  quantity  of  articles  out  of  his  pockets, 
which  were  afterwards  found  by  the  roadside  ;  but  as  it  turned 
out  that  he  was  tipsy  at  the  time,  and  the  articles  might  have 
been  lost  in  the  struggle,  without  any  intent  of  felonious  appro- 
priation on  the  prisoner's  part,  he  was  acquitted.  Bruce's  Case, 
Alison,  Prin.  Crim.  Law  of  Scotland,  35S. 

Mere  trick  or  contrivance  by  which  possession  of  the  property 
is  obtained,  if  unaccompanied  by  violence,  will  not  amount  to 
robbery.     Hiiber  v.  State,  57  lnd.  341. 

The  taking  of  property  from  the  person  of  another  is  robbery, 
when  it  appears  that  although  the  taking  was  fully  completed 
without  his  knowledge,  such  knowledge  was  prevented  by  the  use 
of  force  or  fear. 

The  violence  contemplated  means  more  than  a  simple  assault 
and  battery.  It  must  be  sufficient  to  force  the  person  to  part 
with  his  property  not  only  against  his  will  but  in  spite  of  his 
resistance.     McClosJcey  v.  People,  5  Park.  Crim.  Rep.  299. 

Secretly  picking  a  pocket  is  no  robbery.  The  victim  must  be 
under  the  influence  of  fear.  Norrii  Case,  6  City  Hall  Rec.  86; 
Mahoney  v.  People,  5  Thomp.  &  C.  321>. 

Upon  a  trial  for  robbery  in  tin;  first  degree,  the  taking  of  prop- 
erty from  the  person  by  force  and  violence  was  clearly  proved. 
A   strong   array    of   circumstances    was    proved,    pointing   to    the 


746  LAW   OF    EVIDENCE    IN    CRIMINAL   CASES. 

prisoner  as  the  person  who  committed  the  offense.  Held,  that 
the  question  of  the  prisoner's  guilt  was  properly  submitted  to  the 
jury.     Woomer  v.  People,  3  Keyes,  9. 

A  party  in  possession  of  a  chattel  is,  to  all  intents,  the  legal 
owner,  except  as  to  the  rightful  owner,  and  especially  as  against 
any  wrongdoer  or  criminal  trespasser.  Rex  v.  Deahin,  2  Leach, 
C.  C.  862;  People  v.  Bennett,  37  N.  Y.  117,  93  Am.  Dec.  551, 
and  cases  therein  cited;  State  v.  Addington,  1  Bail.  L.  310.  The 
age  of  the  person  in  possession  of  the  goods  cannot  be  material. 
People  v.  Kendall,  25  Wend.  399,  37  Am.  Dec.  240. 

The  cases  abundantly  sustain  the  position,  that  an  averment  of 
ownership  in  the  person  having  the  actual  possession  and  control 
of  the  thing  stolen  at  the  time  of  the  theft,  is  all  that  is  required. 
People  v.  Bennett,  supra,  and  cases  cited. 

It  is  held  in  People  v.  McDonald,  43  N.  Y.  61,  that  if  money 
or  property  is  delivered  by  the  owner  to  a  person  for  mere 
custody  or  charge,  or  for  some  specific  purpose,  the  legal  posses- 
sion remains  in  the  owner,  and  a  criminal  conversion  of  it  by  the 
custodian  is  larceny. 

§  463.  Views  of  Professor  Ureenleaf. — Professor  Greenleaf, 
says  (3  Greenl.  Ev.  §  231):  "Evidence  that  the  money  or  goods 
were  obtained  from  the  owner  by  putting  him  in  fear,  will  sup- 
port the  allegation  that  they  were  taken  by  force.  And  the  law, 
in  odium  spoliatoris,  will  presume  fear,  wherever  there  appears  a 
just  ground  for  it.  The  fear  may  be  of  injury  to  the  person;  or, 
to  the  property;  or,  to  the  reputation;  and  the  circumstances 
must  be  such  as  to  indicate  a  felonious  intention  on  the  part  of 
the  prisoner.  The  fear,  also,  must  be  shown  to  have  continued 
upon  the  party  up  to  the  time  when  he  parted  with  his  goods  or 
money;  but  it  is  not  necessary  to  prove  any  words  of  menace,  if 
the  conduct  of  the  prisoner  were  sufficient  without  them;  as,  if  he 
begged  alms  with  a  drawn  sword;  or,  by  similar  intimidation, 
took  another's  goods  under  color  of  a  purchase,  for  half  their 
value,  or  the  like.  It  is  only  necessary  to  prove  that  the  fact  was 
attended  with  those  circumstances  of  violence  or  terror,  which,  in 
common  experience,  are  likely  to  induce  a  man  unwilling  to  part 
with  his  mm iev  for  the  safety  of  his  person,  property,  or  reputa- 
tion." The  distinguished  author  cites  in  support  of  the  propo- 
.- i  t  i -  > 1 1  s  of  his  text  the  following  authorities  :  Clary  v.  State,  33 
Ark.  561;    Bill  v.  State,  6  Tex.  App.  113;    Shinn  v.  State,  64 


EMBEZZLEMENT,   ROBBERY    AND    BURGLARY.  747 

Tnd.   13,  31  Am.  Rep.  110;    StaU    v.  Howerton,  58  Mo.  581; 
Foster,  Grim.  L.  128,  129;  2  East,  P.  C.  711,  712. 
§  464.  The  Terms  "  Fear  "  and  "  Violence"  Considered.— 

It  remains  further  to  be  considered  of  what  nature  this  fear  may 
be.  This  is  an  inquiry  the  more  difficult,  because  it  is  nowhere 
defined  in  any  of  the  acknowledged  treatises  upon  this  subject. 
Lord  Hale  proposes  to  consider  what  shall  be  said  to  a  putting  in 
fear;  but  he  leaves  this  part  of  the  question  untouched.  1  Hale, 
P.  C.  534.  Lords  Coke  and  Hawkins  do  the  same.  3  Coke, 
Inst.  6S;  2  Hawk.  P.  C.  chap.  34.  Mr.  Justice  Foster  seems  to 
lay  the  greatest  stress  upon  the  necessity  of  the  property's  being 
taken  against  the  will  of  the  party,  and  he  lays  the  circumstance 
•of  fear  out  of  the  question;  or  that,  at  any  rate,  when  the  fact  is 
attended  with  circumstances  of  violence  or  terror,  the  law  in 
odium  sjpoliatoris  will  presume  fear,  if  it  be  necessary,  where 
there  appears  to  be  so  just  a  ground  for  it.  Foster,  Crim.  L.  123, 
128.  Mr.  Justice  Blackstone  leans  to  the  same  opinion.  4  Bl. 
•Com.  242.  But  neither  of  them  afford  any  precise  idea  of  the 
nature  of  the  fear  or  apprehension  supposed  to  exist. 

The  amount  and  degree  of  violence  which  the  accused  must  ex- 
ert to  bring  him  within  the  statute  defining  robbery,  are  not  de- 
clared, and  they  manifestly  could  not  be.  The  gravamen  of  the 
crime  consists  in  taking  "the  personal  property  of  another  from 
his  person,  or  in  his  presence,  and  against  his  will,  by  violence  to 
his  person,  or  by  putting  such  person  in  fear  of  some  immediate 
injury  to  his  person."  In  other  words  the  violence  to  the  person, 
or  the  fear  of  immediate  injury  to  the  person,  which,  against  the 
owner's  will,  is  sufficient  to  take  his  property,  will,  if  the  taking 
be  felonious,  render  the  taker  amenable  to  the  statute.  It  is  nor 
the  extent  and  degree  of  force  which  make  the  crime,  but  the  suc- 
cess thereof.  In  short,  the  force  which  is  sufficient  to  take  the 
property  against  the  owner's  will,  is  all  that  the  statutes  contem- 
plate; the  distinction  between  robbery  and  larceny  consists  in 
this,  in  the  latter,  the  act  "  is  accomplished  secretly,  or  by  sur- 
prise or  fraud,  while  in  the  former  the  felonious  taking  must  be 
accompanied  by  circumstances  of  violence,  threat-  or  terror  to  the 
person  despoiled."     2  Fast,  P.  C.  559. 

To  authorize  a  conviction  of  theft  of  property  recently  stolen 
from  the  fact  that  the  stolen  property  was  in  defendant's  posses- 
sion, such  possession  must  be  recent  and  personal,  and  there  must 


748  LAW    OF    EVIDENCE    IN    CRIMINAL    CASES. 

be  a  conscious  assertion  of  claim  to  the  property;  and  a  reasonable 
doubt  thereof  requires  an  acquittal.     Clark  v.  State,  30  Tex.  App. 
402. 
§  465.  Description  of  Property    Stolen   not   Required. — 

"It  would  be  unreasonable  to  expect  one  who  is  robbed  of  money 
or  its  representative  to  give  an  accurate  description  of  it,  and  it 
would  render  it  almost  impossible  to  convict  a  thief  or  a  robber  if 
courts  should  undertake  to  require  the  prosecutor,  in  all  cases,  to 
give  a  particular  description  of  the  money  or  note  feloniously 
taken.  The  failure  to  give  an  exact  description  can  never  en- 
danger the  liberty  of  an  innocent  man,  but  the  enforcement  of 
such  a  rule  as  that  for  which  counsel  contend  would  furnish  the 
guilty  with  ready  and  easy  means  of  escape."  -Riggs  v.  State,  104 
ind.  261. 

§  406.  The  Terms  "  Burglary  "  and  "  Break  "  Defined.— 
The  breaking  and  entering  the  house  of  another  in  the  night- 
time, with  intent  to  commit  a  felony  therein  whether  the  fel- 
ony be  actually  committed  or  not.  State  v.  Wilson,  1  N.  J.  L. 
441,  1  Am.  Dec.  216;  Com.  v.  Newell,  7  Mass.  247;  3  Coke,  Inst. 
63;  1  Hale,  P.  C.  540;  1  Hawk.  P.  C.  chap.  38,  §  1;  4  Bl.  Com. 
224;  2  East,  P.  C.  chap.  15,  p.  484,  §  1;  2  Russell,  Crimes,  2;  Ros- 
coe,  Crim.  Ev.  252.  The  circumstances  to  be  considered  are,  1. 
In  what  place  the  offense  can  be  committed;  2.  At  what  time;  3.  By 
what  means;  4.  With  what  intention.     Bouvier,  Law  Diet.  196. 

The  offense  must  be  committed  in  the  night,  for  in  the  day 
time  there  can  be  no  burglary.  4  Bl.  Com.  224.  And  the  intent 
must  be  felonious.  2  Russell,  Crimes,  33.  Any,  the  least,  entry, 
with  the  whole  or  any  part  of  the  body,  hand,  or  foot,  or  with  any 
instrument  or  weapon,  introduced  for  the  purpose  of  committing 
a  felony,  will  be  sufficient  to  constitute  the  offense.  3  Coke,  Inst. 
64;  4  Bl.  Com.  227;  Bac.  Abr.  title  Burglary,  B;  Comyn,  Dig. 
Justices,  p.  4. 

"The  word  "break,"  means  and  includes, 

"1.  Breaking  or  violently  detaching  any  part,  internal  or  exter- 
nal of  a  building;  or, 

u2.  Opening,  for  the  purpose  of  entering  therein,  by  any  means 
whatever,  any  outer  door  of  a  building,  or  of  any  apartment  or 
set  of  apartments  therein  separately  used  or  occupied,  or  any 
window,  shutter,  scuttle  or  other  thing  used  for  covering  or  clos- 


EMBEZZLEMENT,  ROBBERY    AND    BURGLARY.  749 

ing  an  opening  thereto  or  therein,  or  which  gives  passage  from 
one  part  thereof  to  another;  or, 

"3.  Obtaining  an  entrance  into  such  building  or  apartment,  by 
any  threat  or  artifice  used  for  that  purpose,  or  by  collusion  with 
any  person  therein;  or, 

"4.  Entering  such  a  building  or  apartment  by  or  through  any 
pipe,  chimney,  or  other  opening,  or  by  excavating,  digging,  or 
breaking  through  or  under  the  building,  or  the  walls  or  founda- 
tion thereof."     N.  Y.  Penal  Code,  §  499. 

"It  seems  agreed,  that  such  a  breaking  as  is  implied  by  law  in 
every  unlawful  entry  on  the  possession  of  another,  whether  it  be 
open  or  be  inclosed,  and  will  maintain  a  common  indictment,  or 
action  of  trespass  quare  clausum  f regit,  will  not  satisfy  the  words 
felonice  et  burglariter,  except  in  some  special  cases,  in  which  it  is 
accompanied  with  such  circumstances  as  make  it  as  heinous  as  an 
actual  breaking.  And  from  hence  it  follows,  that  if  one  enters 
into  a  house  by  a  door  which  he  finds  open,  or  through  a  hole 
which  was  made  there  before,  and  steals  goods,  etc.,  or  draws  any- 
thing out  of  a  house  through  a  door  or  window  which  was  open 
before,  or  enters  into  the  house  through  a  door  open  in  the  day 
time,  and  lies  there  till  night,  and  then  robs  and  goes  away  with- 
out breaking  any  part  of  the  house,  he  is  not  guilty  of  burglary." 
1  Hawk.  P.'  C.  chap.  38,  §§  4,  5. 

§  467.  What  the  State  must  Prove. — "On  an  indictment  for 
burglary  it  is  essential  to  prove,  1st,  a  felonious  breaking  and  en- 
tering; 2d,  of  the  dwelling4iouse;  3d,  in  the  night-time;  4th,  with 
intent  to  commit  a  felony. 

"In  the  first  place,  it  is  a  question  of  fact  for  the  jury,  whether 
the  prisoner  has  been  guilty  of  any  act  of  breaking;  but  whether 
that  act  amounts  to  a  burglarious  breaking,  is  a  pure  question  of 
law.  There  must  be  evidence  of  an  actual  or  constructive  break- 
ing, for  if  the  entry  was  obtained  through  an  open  door  or  win- 
dow, it  is  no  burglary.  But  the  lifting  of  a  latch;  taking  out  a 
pane  of  glass;  lifting  up  of  folding  doors;  breaking  of  a  wall  or 
gates  which  protect  the  house;  the  descent  down  a  chimney;  the 
turning  of  a  key  where  the  door  is  locked  on  the  inside,  const  i 
tutes  a  sufficient  breaking. 

"Where  the  glass  of  the  window  was  broken,  but  the  shutter 
within  was  not  broken,  it  was  doubted  whether  the  breaking  was 
sufficient,  and  no  judgment  was  given. 


750  LAW    OF    EVIDENCE    IN    CRIMINAL   CASES. 

"Where  an  entry  lias  been  gained  without  any  breaking,  a  sub- 
sequent breaking  will  constitute  the  offense;  as  where  the  party- 
lifts  the  latch  of  a  chamber  door,  or  a  servant  raises  the  latch  of 
his  master's  door  with  intent  to  murder  or  rob  his  master."  2 
Stark.  Ev.  275. 

§  468.  Presumptive  Evidence  of. — Where  a  burglary  is  con- 
nected with  a  larceny,  mere  possession  of  the  stolen  goods,  with- 
out any  other  evidence  of  guilt,  is  not  to  be  regarded  as  prima 
facie  or  presumptive  evidence  of  the  burglary. 

But  where  goods  have  been  feloniously  taken  by  means  of  a 
burglary,  and  they  are  immediately  or  soon  thereafter  found  in 
the  actual  and  exclusive  possession  of  a  person  who  gives  a  false 
account,  or  refuses  to  give  any  account  of  the  manner  in  which 
the  goods  came  into  his  possession,  proof  of  such  possession  and 
guilty  conduct  is  presumptive  evidence,  not  only  that  he  stole  the 
goods,  but  that  he  made  use  of  the  means  by  which  access  to  them 
was  obtained. 

There  should  be  some  evidence  of  guilty  conduct,  besides  the 
bare  possession  of  the  stolen  property  before  the  presumption  of 
burglary  is  superadded  to  that  of  the  larceny.  Davis  v.  People, 
1  Park.  Crim.  Rep.  447. 

§  469.  What  is  "Constructive  Breaking." — It  has  fre- 
quently been  held  in  this  country,  that  the  evidence  must  show 
beyond  a  reasonable  doubt,  that  the  accused  obtained  admission 
to  a  dwelling-house  at  night,  with  the  intent  to  commit  a  felony, 
by  means  of  artifice  or  fraud  or  upon  a  pretense  of  business  or 
social  intercourse,  is  a  constructive  breaking,  and  will  sustain  an 
indictment  charging  a  burglary  by  breaking' and  entering.  John- 
ston v.  Com.  85  Pa.  54,  27  Am.  Rep.  622;  Holland  v.  Com.  82 
Pa.  306,  22  Am.  Rep.  758;  State  v.  Wilson,  1  K  J.  L.  439,  1  Am. 
Dec.  216;  State  v.  McCall,  4  Ala.  643,  39  Am.  Dec.  314;  Bishop, 
Statutory  Crimes,  §  312,  and  cases  there  cited.  The  same  was 
held  in  Ohio  under  a  statute  against  "  forcible "  breaking  and 
entering.  Ducher  v.  State,  18  Ohio,  308.  But  it  is  claimed  that 
in  the  state  of  Wisconsin,  the  common  law  doctrine  of  construct- 
ive breaking  has  no  application  to  a  case  of  this  kind,  and  in  fact 
is  superseded  by  statute,  except  in  so  far  as  it  is  re-affirmed. 
Thus:  "Any  unlawful  entry  of  a  dwelling  or  other  building 
with  intent  to  commit  a  felony,  shall  be  deemed  a  breaking  and 
entering  of   such   dwelling-house  or  other  building,  within  the 


EMBEZZLEMENT,  ROBBERY  AND  BURGLARY.  751 

meaning  of  the  last  four  sections."  Rev.  Stat.,  §  4411.  This 
section  merely  establishes  a  rule  of  evidence  whereby  the  scope 
of  constructive  breaking  is  enlarged  so  as  to  take  in  "  any  unlaw- 
ful entry  of  a  dwelling-house  or  other  building  with  intent  to 
commit  a  felony."  See  State  v.  Kane,  63  "Wis.  262.  It  in  no 
way  narrows  the  scope  of  constructive  breaking,  as  understood  at 
common  law,  but  merely  enlarges  it  in  the  particulars  named.  In 
all  other  respects  such  constructive  breaking  signifies  the  same  as 
at  common  law.  It  necessarily  follows  that  as  the  word  "  break," 
used  in  section  4410,  had  obtained  a  fixed  and  definite  meaning 
at  common  law  when  applied  to  a  dwelling-house  proper  or  other 
buildings  within  the  curtilage,  the  legislature  must  be  presumed 
to  have  used  it  in  the  same  sense  when  therein  applied  to  other 
statutory  breakings.  Ex  parte  Vincent,  26  Ala.  145,  62  Am. 
Dec.  714;  Ducher  v.  State,  18  Ohio,  308;  Bishop,  Statutory 
Crimes,  §§  7,  SN.  That  is  to  say  they  must  be  deemed  to  have 
used  the  word  as  understood  at  common  law  in  relation  to  the 
same  or  a  like  subject-matter.  Nicholls  v.  State,  68  Wis.  416,  60 
Am.  Rep.  870. 

§  470.  Evidence  of  Former  Attempts. — On  a  trial  for  burg- 
lary, it  is  no  valid  objection  to  evidence,  tending  to  show  the 
burglarious  intent  of  defendant's  act,  that  it  proves  another  and 
distinct  offense,  but  the  intent  with  which  he  entered  may  be 
shown  by  proof  of  a  felony  committed  in  an  adjoining  store. 
Osborne  v.  People,  2  Park.  Grim.  Rep.  583;  Phillips  v.  People, 
57  Barb.  363.  In  Mason  v.  State,  42  Ala.  532,  evidence  was 
held  admissible  to  show  that  the  prisoners  had  committed  other 
burglaries  than  that  charged.  The  court  says:  ""The  evidence 
tended  to  show  that  there  was  a  privity  and  community  of  design 
between  the  prisoners  to  commit  offenses  of  the  character  charged 
against  them."  "Privity  and  community  of  design  "  is  a  larger 
phrase  than  "intent,"  but  it  means  the  same  thing.  To  show 
their  intent,  written  articles  of  agreement  signed  by  the  defend- 
ants, setting  forth  their  intent  of  going  into  the  burglary  busi- 
ness, would  be  competent.  And  it  would  not  be  necessary  that 
their  agreement  be  reduced  to  writing.  Their  oral  statements 
would  be  equally  competent,  as  in  the  case  of  the  dealer  in  coun- 
terfeit money,  and  the  intent  may  be  proved  by  other  burglaries, 
as  well  as  by  written  or  oral  statements;  by  arts,  as  well  as  by 
words  written  or  spoken,  by  the  executed,  as  well  as  by  the  i 


752  LAW    OF    EVIDENCE    IN    CRIMINAL    CASES. 

utory  agreement.  And  in  the  case  of  a  single  defendant,  his  in- 
tent may  be  shown  by  the  same  kind  of  evidence  that  would  be 
admissible  against  several  joint  defendants,  as  in  the  case  of  the 
dealer  in  counterfeit  money.  Evidence  that  a  man  has  often 
passed  counterfeit  money  has  a  legal  tendency  to  show  that  he 
in  rends  to  pass  more  of  the  same  kind  of  money  found  in  his  pos- 
session.  The  number  of  his  previous  attempts  to  pass  such  money 
affects  the  weight,  not  the  competency,  of  this  kind  of  evidence. 
So,  when  A  has  broken  and  entered  B's  house,  and  the  question 
is  whether  he  broke  and  entered  it  with  a  burglarious  intent,  evi- 
dence of  his  having  repeatedly  broken  and  entered  other  houses 
for  the  purpose  of  stealing,  tends  to  show  the  intent  with  which 
he  broke  and  entered  B's  house. 

§  471.  Partial  Review  of  Late  Decisions. — In  People  v. 
Ah  Sing,  59  Cal.  400,  the  opinion  of  the  court  is  as  follows  • 
'•'  The  defendant  was  proceeded  against  by  information,  and  con- 
victed of  the  crime  of  burglary,  and  on  the  trial  the  court 
below  instructed  the  jury  that  the  possession  of  stolen  property, 
supported  by  other  circumstances  and  other  evidence  tending  to 
show  guilt,  is  a  strong  circumstance  in  the  case.  This  was  error, 
whether  the  possession  was  strong  evidence,  or  only  slight  evi- 
dence, tending  to  show  guilt,  was  a  matter  for  the  jury  to  pass 
upon,  and  not  a  question  for  the  court  to  determine."  In  People 
v.  Titherington,  59  Cal.  59S,  wherein  the  appellant  was  convicted 
of  burglary,  a  similar  instruction  was  held  erroneous,  the  court 
below  having  said  that  "  such  possession,  if  proven  to  the  satis- 
faction of  the  jury,  and  unexplained  by  the  defendant,  supported 
by  other  circumstances  tending  to  show  guilt,  i.-  a  strong  circum- 
stance tending  to  show  guilt."  In  People  v.  Cline,  74  Cal.  575, 
it  appeared  that  the  defendant  was  convicted  of  grand  larceny, 
and  the  following  instruction  was  given  to  the  jury:  "The  pos- 
session of  stolen  property,  supporting  other  evidence  tending  to 
show  guilt,  is  a  strong  circumstance  tending  to  show  guilt."  The 
court  affirmed  the  case  of  People  v.  Ah  Sing,  supra,  and  Chief 
Justice  Searls,  in  the  opinion,  says:  "In  other  words,  it  is  not  a 
tion  of  law,  upon  which  the  court  should  instruct  the  jury, 
but  one  of  fact  which  is  wholly  within  the  province  of  the  latter. 
In  adducing  the  ultimate  fact  of  guilt  or  innocence,  they  are  the 
sole  judges  of  the  weight  to  be  given  to  the  probative  fact  of 
possession  of  property  recently  stolen,  and  of  all  the  circumstances 
surrounding  and  stamping  the  character  of  such  possession." 


EMBEZZLEMENT,  ROBBERY  AND  BURGLARY.  753 

In  Clary  v.  State,  33  Ark.  566,  this  court  said :  "  Perhaps,  on 
a  trial  for  robbery,  if  the  state  fails  to  prove  that  the  goods  were 
taken  from  the  person  or  party  charged  to,  have  been  injured,  by 
putting  him  in  fear,  or  by  intimidation  or  violence,  and  proves 
that  the  goods  were  taken  from  his  person  furtively,  the  accused 
might  be  accused  of  larceny." 

In  State  v.  Emerson,  48  Iowa,  174,  substantially  the  same  ques- 
tion arose,  and  the  court  said :  "  When  a  reasonable  doubts  exists 
as  to  the  character  of  the  recent  possession,  whether  it  be  inno- 
cent or  guilty,  a  reasonable  doubt  exists  as  to  the  defendant's 
guilt.  If  such  doubt  exists  he  cannot  be  convicted.  Xow,  such 
a  doubt  may  arise  in  the  minds  of  the  jury  upon  less  than  a  pre- 
ponderance of  the  evidence.  It  was  therefore  erroneous  to  direct 
the  jury  that  they  could  find  the  defendant  guilty,  unless  defend- 
ant, by  a  preponderance  of  the  testimony,  reasonably  satisfied 
them  that  his  possession  of  the  cattle  was  innocent."  See  also 
State  v.  Henry,  48  Iowa,  403;  State  v.  Merrick,  19  Me.  398; 
Hall  v.  State,  8  Ind.  439;  Heed  v.  State,  25  Wis.  421. 

A  family  vault  in  a  cemetery  is  a  "  building  or  erection  or  en- 
closure," as  defined  in  the  penal  code,  and  a  person  who  breaks 
and  enters  the  same  with  intent  to  commit  a  crime  therein,  is 
guilty  of  burglary  in  the  third  degree."  People  v.  Richards,  5 
X.  Y.  Crim.  Rep.  355. 
48 


CHAPTER  LIV. 

MURDER  AND  MANSLAUGHTER. 

§  472.  Distinction  between  Murder  and  Manslaughter. 

473.  Degrees  of  the  Offense. 

474.  Wlien  Justifiable. 

475.  Effect  and  Definition  of  Provocation. 

476.  Texas  Code  Provisions  on  the  Subject  of  Homicide. 

477.  When  Causing  Death  does  not  Amount  to  Homicide. 

478.  A  Celebrated  Case  Examined. 

479.  Intent  to  Kill  is  the  Essence  of  the  Crime. 

480.  How  Death  mag  be  Accomplished. 

481.  Burden  of  Proving  Mitigating  Circumstances. 

482.  Evidence  of  Character  in  Cases  of. 

483.  Evidence  of  Death  bg  Poisoning. 

484.  Evidence  of  Blood  Stains  in  Cases  of  Homicide. 

485.  Evidence  should  Convince  Jury  beyond  Reasonable  Doubt. 
48G.  Note  on  Expert  Medical  Evidence. 

§  472.  Distinction  between  Murder  and  Manslaughter. — 

Voluntary  manslaughter  often  so  nearly  approaches  murder,  it  is 
necessary  to  distinguish  it  clearly.  This  difference  is  this :  Man- 
slaughter is  never  attended  by  legal  malice  or  depravity  of  heart, 
that  condition  or  frame  of  mind  before  spoken  of,  exhibiting 
wickedness  of  disposition,  recklessness  of  consequences  or  cruelty, 
being  sometimes  a  willful  act,  as  the  term  "voluntarily"  denotes. 
It  is  necessary  that  the  circumstances  should  take  away  every 
evidence  of  cool  depravity  of  heart  or  wanton  cruelty.  There- 
fore, to  reduce  an  intentional  blow,  stroke  or  wounding,  resulting 
in  death,  to  voluntary  manslaughter,  there  must  be  sufficient 
cause  or  provocation,  and  a  state  of  rage  or  passion,  without  time 
to  cool,  placing  the  prisoner  beyond  the  control  of  his  reason,  and 
suddenly  impelling  him  to  the  deed.  If  any  of  these  be  wanting, 
if  there  be  provocation  without  passion,  or  passion  without  a 
sufficient  cause  of  provocation,  or  there  be  time  to  cool,  and  rea- 
son has  resumed  its  sway,  the  killing  will  be  murder. 

"  Murder    ...    is  the  voluntary  killing  of  any  person  .    .    . 
of  malice  pretense  or  aforethought,  either  express  or  implied,  by 

754 


MURDER   AND   MANSLAUGHTER.  755 

law ;  the  sense  of  which  word  malice  is  not  only  confined  to  a  par- 
ticular ill  will  to  the  deceased,  "but  is  intended  to  denote,  as  Mr. 
Justice  Foster  expresses  it,  an  action  flowing  from  a  wicked  and 
corrupt  motive,  a  thing  done  malo  animo,  where  the  fact  has  been 
attended  with  such  circumstances  as  carry  in  them  the  plain  indi- 
cations of  a  heart  regardless  of  social  duty  and  fatally  bent  upon 
mischief.  And  therefore  malice  is  implied  from  any  deliberate, 
cruel  act  against  another,  however  sudden."     §  2. 

"  Manslaughter  is  principally  distinguishable  from  murder  in 
this:  that  though  the  act  which  occasions  the  death  be  unlawful, 
or  likely  to  be  attended  with  bodily  mischief,  yet  the  malice, 
either  express  or  implied,  which  is  the  very  essence  of  murder,  is 
presumed  to  be  wanting  in  manslaughter;  and,  the  act  being  im- 
puted to  the  infirmity  of  human  nature,  the  correction  ordained 
for  it  is  proportionally  lenient."     §  4. 

"  The  implication  of  malice  arises  in  every  instance  of  homi- 
cide amounting,  in  point  of  law,  to  murder;  and  in  every  charge 
of  murder,  the  fact  of  killing  being  first  proved,  all  the  circum- 
stances of  accident,  necessity,  or  infirmity,  are  to  be  satisfactorily 
proved  by  the  prisoner,  unless  they  arise  out  of  the  evidence  pro- 
duced against  him."     £  12. 

"  Whenever  death  ensues  from  sudden  transport  of  passion  or 
heat  of  blood,  if  upon  a  reasonable  provocation  and  without 
malice,  or  if  upon  sudden  combat,  it  will  be  manslaughter;  if 
without  such  provocation,  or  the  blood  has  had  reasonable  time  or 
opportunity  to  cool,  or  there  be  evidence  of  express  malice,  it  will 
be  murder."     §  19. 

""Words  of  reproach,  how  grievous  soever,  are  not  provocation 
sufficient  to  free  the  party  killing  from  the  guilt  of  murder;  nor 
are  contemptuous  or  insulting  actions  or  gestures,  without  an 
assault  upon  the  person;  nor  is  any  trespass  against  lands  or 
goods.  This  rule  governs  every  case,  where  the  party  killing 
upon  such  provocation  made  use  of  a  deadly  weapon,  or  otherwise 
manifested  an  intention  to  kill,  or  to  do  some  great  bodily  harm. 
But  if  he  had  given  the  other  a  box  on  the  ear,  or  had  struck  him 
with  a  stick,  or  other  weapon  not  likely  to  kill,  and  had  unluckily 
and  against  his  intention  killed  him,  it  had  been  but  man- 
slaughter."    1  East,  P.  C.  chap.  5,  §§  2,  4,  L2,  L9,  20. 

No  person  can  be  convicted  of  murder  or  manslaughter  unless 
the  death  of  the  person  alleged  to  have  keen    killed   and   the  fact 


756  LAW    OF    EVIDENCE    IN    CRIMIMAL    OASES. 

of  killing  by  the  defendant,  as  alleged,  are  each  established  as  in- 
dependent facts;  the  former  by  direct  proof  and  the  latter  beyond 
a  reasonable  doubt. 

§  473.  Degrees  of  the  Offense. — "The  killing  of  a  human  be- 
ing, unless  it  is  excusable  or  justifiable,  is  murder  in  the  first 
degree  when  committed,  either, 

1.  From  a  deliberate  and  premeditated  design  to  effect  the 
death  of  the  person  killed,  or  of  another,  or 

2.  By  an  act  imminently  dangerous  to  others,  and  evincing  a 
depraved  mind,  regardless  of  human  life,  although  without  a  pre- 
meditated design  to  effect  the  death  of  any  individual;  or  without 
a  design  to  effect  death,  by  a  person  engaged  in  the  commission 
of,  or  in  an  attempt  to  commit  a  felony,  either  upon  or  affecting 
the  person  killed  or  otherwise;  or, 

3.  When  perpetrated  in  committing  the  crime  of  arson  in  the 
first  degree. 

"Such  killing  of  a  human  being  is  murder  in  the  second  degree, 
when  committed  with  a  design  to  affect  the  death  of  the  person 
killed,  or  of  another,  but  without  deliberation  and  premeditation. 

"Such  homicide  is  manslaughter  in  the  first  degree,  when  com- 
mitted without  a  design  to  effect  death,  either 

1.  By  a  person  engaged  in  committing,  or  attempting  to  com- 
mit, a  misdemeanor,  affecting  the  person  or  property,  either  of 
the  person  killed,  or  of  another;  or 

2.  In  the  heat  of  passion,  but  in  a  cruel  and  unusual  manner,  or 
by  means  of  a  dangerous  weapon. 

"Such  homicide  is  manslaughter  in  the  second  degree,  when 
committed  without  a  design  to  effect  death,  either 

1.  By  a  person  committing  or  attempting  to  commit  a  trespass, 
or  other  invasion  of  a  private  right,  either  of  a  person  killed,  or 
of  another,  not  amounting  to  a  crime;  or, 

2.  In  the  heat  of  passion,  but  not  by  a  dangerous  weapon  or  by 
the  use  of  means  either  cruel  or  unusual ;  or 

3.  By  any  act,  procurement  or  culpable  negligence  of  any  per- 
son, which,  according  to  the  provisions  of  this  chapter,  does  not  con- 
stitute the  crime  of  murder  in  the  first  or  second  degree,  nor  man- 
slaughter in  the  first  degree.  See  N.  Y.  Penal  Code,  §§  183,  184, 
180,  193. 

In  jurisdictions  where  murder  is  divided  into  two  degrees,  mur- 
der in  the  first  degree  requiring  deliberation  and  premeditation, 


MURDER   AND    MANSLAUGHTER.  757 

in  other  words,  actual  malice,  it  has  been  frequently  held  that 
evidence  of  mental  excitement  resulting  from  drunkenness  and, 
perhaps,  also  of  other  abnormal  conditions  of  the  mind  not 
amounting  to  insanity,  may  reduce  an  unprovoked  homicide  to 
murder  in  the  second  degree;  but  it  has  always  been  held  that 
such  evidence  cannot  of  itself  reduce  the  crime  to  manslaughter. 
On  this  point  see  Jones  v.  Com.  75  Pa.  403;  Mclntyre  v.  People, 
38  111.  520;  Rafferty  v.  People,  66  111.  118,  18  Am.  Eep.  601; 
People  v.  Rogers,  18  K  Y.  27,  72  Am.  Dec.  481;  Com.  v.  Hawk- 
ins, 3  Gray,  463;  People  v.  Belenela,  21  Cal.  544;  Plrtle  v.  State, 
9  Humph.  663;  Halle  v.  State,  11  Humph.  155;  Tidwellv.  State, 
70  Ala.  33;  Willis  v.  Com.  32  Gratt.  929. 

"All  peculiar  traits  may  be  put  in  evidence  to  lower  the  grade 
of  the  offense,  although  they  do  not  amount  to  insanity. "  1 
Whart.  Medical  Jurisprudence. 

"Partial  insanity  may  be  evidence  to  disprove  the  presence  of 
the  kind  of  malice  required  by  the  law  to  constitute  the  particu- 
lar crime  of  which  the  prisoner  is  accused."  Stephen,  Dig.  1863, 
§92. 

In  Pennsylvania,  the  legislature,  considering  that  there  is  a 
manifest  difference  in  the  degree  of  guilt,  where  a  deliberate  in- 
tention to  kill  exists,  and  where  none  appears,  distinguishes  mur- 
der into  two  grades,  murder  of  the  first  and  murder  of  the  sec- 
ond degree;  and,  provided  that  the  jury  before  whom  any  person 
indicted  for  murder  shall  be  tried,  shall,  if  they  lind  him  guilty 
thereof,  ascertain  in  their  verdict  whether  it  be  murder  of  the 
first  or  murder  of  the  second  degree. 

§  474.  When  Justifiable. — Homicide  is  declared  to  be  justifi- 
able, excusable  or  felonious.     4  Bl.  Com.  476. 

Every  homicide  which  is  neither  justifiable  nor  excusable  must 
of  necessity  be  "felonious."  Every  felonious  homicide  must  be 
and  is  either  murder  or  manslaughter.     4  Bl.  Com.  190. 

Murder  and  manslaughter  are  each  and  both  felonies.  2  Bishop, 
Grim.  L.  617. 

Therefore  every  assault  feloniously  committed  with  intent  to 
"feloniously  kill,"  must  of  necessity  be  and  is  a  criminal  assault, 
with  intent  to  commit  a  felony,  either  murder  or  manslaughter. 
An  assault  with  intent  to  commit  either  of  these  crimes  is  an 
assault  with  intent  to  commit  a  felony,  and  is  indictable.  2  Bishop, 
Grim.  L.  029. 


758  LAW    OF    EVIDENCE    IN    CRIMINAL    CASES. 

All  statutes  providing  for  the  punishment  of  assaults  with  in- 
tent to  commit  crime  contemplate  complete  commission  of  the 
one  offense,  the  assault,  the  misdemeanor,  with  the  intent  to 
commit  the  other  complete  crime,  which  would  be  a  felony. 
Wilson  v.  People,  24  Mich.  410. 

Where  a  party  by  one  witness  has  introduced  certain  testimony, 
he  is  not  necessarily  bound  thereby,  but  that  he  must  give  contra- 
dictory testimony  by  another  witness  or  witnesses,  and  may  there- 
after in  argument  claim  the  benefit  of  the  more  favorable  portion 
of  such  contradictory  testimony.  Bullard  v.  Pear.mil,  53  N.  Y. 
230;  Howard  y.  State,  32  Ind.  478;  Melluish  v.  Collier,  15  Q.  B. 
878;  1  Stark.  Ev.  210;  2  Phil.  Ev.  985;  1  Greenl.  Ev.  §  414. 

Homicide  is  also  justifiable  when  committed,  either — 

1.  In  the  lawful  defense  of  the  slayer,  or  of  his  or  her  husband, 
wife,  parent,  child,  brother,  sister,  master  or  servant,  or  of  any 
other  person  in  his  presence  or  company,  when  there  is  reasonable 
ground  to  apprehend  a  design  on  the  part  of  the  person  slain  to 
commit  a  felony,  or  to  do  some  great  personal  injury  to  the  slayer, 
or  to  any  such  person,  that  there  is  imminent  danger  of  such  de- 
sign being  accomplished;  or, 

2.  In  the  actual  resistance  of  an  attempt  to  commit  a  felony 
upon  the  slayer,  in  his  presence,  or  upon  or  in  a  dwelling  or  other 
place  of  abode  in  which  he  is. 

The  statute  above  quoted  states  the  general  doctrine  of  the 
cases.  Kingen  v.  State,  45  Ind.  518;  Runyan  v.  State,  57  Ind. 
80,  26  Am.  Rep.  52;  People  v.  Anderson,  41  Cal.  65;  People  v. 
Morine,  61  Cal.  367;  State  v.  Newcomb,  1  Houst.  Grim.  Rep.  66; 
State  v.  Hottis,  1  Houst.  Grim.  Rep.  24;  StaU  v.  Vines,  1  Houst. 
Crim.  Rep.  424;  Davison  v.  People,  90  111.  221;  State  v.  Bohan, 
L9  Kan.  28,  55;  State  v.  Rose,  30  Ivan.  501;  Kennedy  v.  Com.  14 
Bush,  340;  Farris  v.  Com.  14  Bush,  362;  Minton  v.  Com.  79  Ky. 
461;  State  v.  Garic,  35  La.  Ann.  97":  State  v.  Mattht  ws,  78KO. 
523;  Draper  v.  State,  4  Baxt.  246;  Holt  v.  State,  9  Tex.  App.  571; 
StaU  v.  Abbott,  8  W.  Ya.  741;  Stak  v.  Cain,  20  W.  Va.  679. 

§  475.  Effect  and  Definition  of  Provocation. — "Homicide, 
which  would  otherwise  be  murder,  is  not  murder,  but  manslaugh- 
ter, if  the  act  by  which  death  is  caused  is  done  in  the  heat  of  pas- 
sion, caused  by  provocation,  as  hereinafter  defined,  unless  the 
provocation  was  sought  or  voluntarily  provoked  by  the  offender 
as  an  excuse  for  killing;  or  doing  bodilv  harm.     The  following;  acts 


MURDER   AND    MANSLAUGHTER.  759 

may  .  .  .  amount  to  provocation :  (a)  An  assault  and  battery 
of  such  a  nature  as  to  inflict  actual  bodily  harm,  or  great  insult,  is  a 
provocation  to  the  person  assaulted,  (b)  If  two  persons  quarrel 
and  fight  upon  equal  terms  and  upon  the  spot,  whether  with 
deadly  weapons  or  otherwise,  each  gives  provocation  to  the  other 
whichever  is  right  in  the  quarrel,  and  whichever  strikes  the  first 
blow,  (c)  An  unlawful  imprisonment  is  a  provocation  to  the 
person  imprisoned,  but  not,  to  the  by-standers,  though  an  unlaw- 
ful imprisonment  may  amount  to  such  a  breach  of  the  peace  as  to 
entitle  a  by-stander  to  prevent  it  by  the  use  of  force  sufficient  for 
that  purpose.  An  arrest  by  officers  of  justice,  whose  character  as 
such  is  known,  but  who  are  acting  under  a  warrant  so  irregular 
as  to  make  the  arrest  illegal,  is  provocation  to  the  person  illegally 
arrested,  but  not  to  by-standers.  (d)  The  sight  of  the  act  of 
adultery  committed  with  his  wife  is  provocation  to  the  husband 
of  the  adulteress  on  the  part  of  both  the  adulterer  and  of  the 
adulteress,  (e)  The  sight  of  the  act  of  sodomy  committed  upon 
a  man's  son  is  provocation  to  the  father  on  the  part  of  the  person 
committing  the  offense,  (f)  Neither  words,  nor  gestures,  nor 
injuries  to  property,  nor  breaches  of  contract  amount  to  provoca- 
tion, except  perhaps  words  expressing  an  intention  to  inflict  actual 
bodily  injury,  accompanied  by  some  act  which  shows  that  such 
injury  is  intended;  but  words  used  at  the  time  of  an  assault — 
slight  in  itself — may  be  taken  into  account  in  estimating  the  de- 
gree of  provocation  given  by  a  blow,  (g)  The  employment  of 
lawful  force  against  the  person  of  another  is  not  a  provocation  to 
the  person  against  whom  it  is  employed. 

"Provocation  does  not  extenuate  the  guilt  of  homicide  unless 
the  person  provoked  is,  at  the  time  when  he  does  the  act,  deprived 
of  the  power  of  self  control  by  the  provocation  which  he  has  re- 
ceived; and,  in  deciding  the  question  whether  this  was  or  was  not 
the  case,  regard  must  be  had  to  the  nature  of  the  act  by  which 
the  offender  causes  death,  to  the  time  which  elapsed  between  the 
provocation  and  the  act  which  caused  death,  to  the  offender's 
conduct  during  that  interval,  and  to  all  other  circumstances  tend- 
ing to  show  the  state  of  his  mind. 

" Provocation  to  a  person  by  an  actual  assault,  or  by  a  mutual 
combat,  or  by  a  false  imprisonment,  is  in  some  cases  provocation 
to  those  who  are  with  that  person  at  the  time,  and  to  his  friends 
who,  in  the  case  of  a  mutual   combat,  take  part  in  the  tight    lor 


760  LAW    OF    EVIDENCE    IN    CRIMINAL    CASES. 

his  defense.     But  it  is  uncertain  how  far  this  principle  extends." 
Stephen,  Dig.  art.  224,  225,  226. 
§  476.  Texas  Code  Provisions  on  the  Subject  of  Homicide. 

— "Homicide  is  permitted  in  the  necessary  defense  of  person  or 
property  under  the  circumstances  and  subject  to  the  rules  herein 
set  forth."     Texas  Penal  Code,  art.  567;  Paschal,  Dig.  art.  2225. 

"Homicide  is  permitted  by  law,  and  subject  to  no  punishment, 
when  inflicted  for  the  purpose  of  preventing  the  offenses  of  mur- 
der, rape,  robbery,  maiming,  arson,  burglary,  and  theft  at  night, 
whether  the  homicide  be  permitted  by  the  person  about  to  be 
injured,  or  by  some  person  in  his  behalf,  when  the  killing  takes 
place  under  the  following  circumstances: 

"1.  It  must  reasonably  appear  by  the  acts,  or  by  the  words 
coupled  with  the  acts  of  the  person  killed,  that  it  was  the  purpose 
and  intent  of  such  person  to  commit  one  of  the  offenses  above 
named.  2.  The  killing  must  take  place  while  the  person  killed 
was  in  the  act  of  committing  the  offense,  or  after  some  act  done 
by  him,  showing  evidently  an  intent  to  commit  such  offense.  3. 
It  must  take  place  before  the  offense  committed  by  the  party 
killed  is  actually  completed,  except  that,  in  case  of  rape,  the 
ravisher  may  be  killed  at  any  time  before  he  has  escaped  from 
the  presence  of  his  victim,  and  except  also  in  the  cases  hereinafter 
enumerated.  4.  Where  the  killing  takes  place  to  prevent  the 
murder  of  some  other  person,  it  shall  not  be  deemed  that  the  mur- 
der is  complete  so  long  as  the  offender  is  still  inflicting  violence, 
though  the  mortal  wound  may  have  been  given.  5.  If  homicide 
takes  place  in  preventing  a  robbery,  it  shall  be  justifiable,  if  done 
while  the  robber  is  in  the  presence  of  the  person  robbed,  or  is 
Hying  with  the  money  or  other  article  taken  by  him.  6.  In  case 
of  maiming,  the  homicide  may  take  place  at  any  time  while  the 
the  offender  is  mistreating  with  violence  the  person  injured, 
though  he  may  have  completed  the  offense  of  maiming.  7.  In 
case  of  arson,  the  homicide  may  be  inflicted  while  the  offender  is 
in  or  at  the  building  or  other  property  burnt,  or  flying  from  the 
place  before  the  destruction  of  the  same.  8.  In  case  of  burglary 
and  theft  by  night,  the  homicide  is  justifiable  at  any  time  while 
the  offender  is  in  the  building,  or  at  the  plaee  where  the  theft  is 
committed,  or  is  within  gunshot  from  such  place  or  building." 
Texas  Penal  Code,  art.  568;  Paschal,  Dig.  art.  2226. 

"When  the  homicide  takes  place  to  prevent  murder  or  maiming,. 


MURDER    AXD    MANSLAUGHTER.  761 

if  the  weapons  or  means  used  by  the  party  attempting  or  commit- 
ting sucli  murder  or  maiming,  are  such  as  would  have  been  cal- 
culated to  produce  that  result,  it  is  to  be  presumed  that  the  person 
so  using  them  designed  to  inflict  the  injury."  Texas  Penal  Code, 
art.  569;  Paschal,  Dig.  art.  2227. 

"Homicide  is  justifiable  also  in  the  protection  of  the  person  or 
property  against  any  other  unlawful  and  violent  attack  besides 
tin isc  mentioned  in  the  preceding  article,  and  in  such  cases,  all 
other  means  must  be  resorted  to  for  the  prevention  of  the  injury, 
and  the  killing  must  take  place  while  the  person  killed  is  in  the 
very  act  of  making  such  unlawful  and  violent  attack  besides 
those  mentioned  in  the  preceding  article,  and  any  person  interfer- 
ing in  such  case,  in  behalf  of  the  person  about  to  be  injured,  is 
not  justifiable  in  killing  the  aggressor,  unless  the  life  or  person  of 
the  injured  party  is  in  peril,  by  reason  of  such  attack  upon  his 
property."     Texas  Penal  Code,  art.  570;  Paschal,  Pig.  art.  2228. 

"The  party  whose  person  or  property  is  so  unlawfully  attacked, 
is  not  bound  to  retreat  in  order  to  avoid  the  necessity  of  killing 
his  assailant."  Texas  Penal  Code,  art.  571;  Paschal,  Dig.  art. 
222!». 

"The  attack  upon  the  person  of  an  individual,  in  order  to  jus- 
tify homicide,  must  be  such  as  produces  a  reasonable  expectation 
or  fear  of  death,  or  some  serious  bodily  injury."  Texas  Penal 
Code.  art.  572:  Paschal.   Dig.  art.  22o'». 

"When  under  article  .">7"  a  homicide  is  committed  in  the  pro- 
tection of  property,  it  must  be  done  under  the  following  circum- 
stances: 

•'1.  The  possession  must  be  of  corporeal  property,  and  not  of  a 
mere  right;  and  the  possession  must  be  actual,  and  not  merely 
constructive.  2.  The  possession  must  be  legal,  though  the  right 
of  property  may  not  be  in  the  possessor.  3.  If  the  possession  lie 
once  lost  it  is  not  lawful  to  regain  it  by  such  means  as  result  in 
homicide.  4.  Every  other  effort  in  his  power  must  be  made  by 
the  possessor,  to  repel  the  aggression,  before  he  will  be  justified 
in  killing."     Texas  Penal  Code.  art.  573;  Paschal,  Dig.  art.  2231. 

"Simple  assault  and  battery  or  mere  trespass  upon  property, 
will  not  justify  homicide,  nor  will  any  offense,  not  accompanied 
by  force,  such  as  theft,  except  in  the  night,  time,  and  from  some 
house  or  place,  such  a.-  defined  in  article-  680  and  681."  Texas 
Penal  Code,  art,  574;   Paschal.   Dig.  art.  2232. 


762  LAW    OF    EVIDENCE    IN    CRIMINAL    CASES. 

The  statutory  provisions  above  expressed  are  in  effect  generally 
adopted  in  this  country.  The  phraseology  of  the  Texas  statutes 
is  more  didactic  and  concise  than  many  others  and  has  for  this 
reason  been  selected  for  illustration. 

§  477.  When  Causing  Death  does  not  Amount  to  Homi- 
cide.— Under  the  English  rule,  "a  person  is  not  deemed  to  have 
committed  homicide,  although  his  conduct  may  have  caused  death, 
in  the  following  cases:  (a)  When  the  death  takes  place  more 
than  a  year  and  a  day  after  the  injury  is  inflicted  is  to  be  counted 
as  the  first  day.  (b)  [It  is  said]  "When  the  death  is  caused  without 
any  definite  bodily  injury  to  the  person  killed,  but  this  does  not 
extend  to  the  case  of  a  person  whose  death  is  caused,  not  by  any 
one  bodily  injury,  but  by  repeating  acts  affecting  the  body  which 
collectively  cause  death,  though  no  one  of  them  by  itself  would 
have  caused  death,  (c)  [It  seems]  When  death  is  caused  by  false 
testimony  given  in  a  court  of  justice."     Stephen,  Dig.  art.  221. 

§  47S.  A  Celebrated  Case  Examined. — The  case  of  Com.  v. 
«Si  Ifridge  (Horrigan  &  T.  Cases  on  Self-Defense,  1)  decided  by 
the  supreme  judicial  court  of  Massachusetts  in  1806,  is  one  of 
the  celebrated  cases  in  American  criminal  law.  It  established 
certain  rules  of  action  and  principles  of  evidence,  that  many  years 
after  inspired  distinctive  legislation  in  the  criminal  codes  of  New 
York,  Kansas,  Missouri,  Minnesota,  Wisconsin  and  other  states, 
that  must  ever  be  regarded  as  both  wise  and  salutary.  Mr. 
Wharton,  whose  primacy  upon  matters  pertaining  to  criminal  law, 
we  all  cordially  recognize — has  fallen  into  an  unaccountable  error 
in  his  extended  criticism  of  this  case.  (  Vide  1  Whart.  Grim.  Law, 
(5th  ed.)  note  appended  to  §  1026.)  Aside  from  the  dogmatic 
assertion  of  his  language,  which  is  a  disfigurement  to  any  text, 
and  especially  unfortunate  to  the  semi-judicial  treatment  of  a 
serious  topic  concerning  the  life  of  fellow  citizens;  and  his  offenses 
in  this  direction  become  positively  inexplicable,  when  he  embarks 
in  a  very  decided  attempt  to  impugn  the  character  of  one  of  the 
most  stainless  jurists,  who  has  ever  graced  the  bench  in  this  or 
any  other  land. 

Returning  to  the  case  of  Com.  v.  St  [fri<hje,supra,ve  may  say, 
that  the  positions  it  established  are  these:  First.  A  man,  who  in 
the  lawful  pursuit  of  his  business,  is  attacked  by  another,  under 
circumstances  which  denote  an  intention  to  take  away  his  life,  or 
do  him  some  enormous  bodily  harm,  may  lawfully  kill  the  assail- 


MURDER    AND    MANSLAUGHTER.  7G3 

ant,  provided  lie  uses  all  the  means  in  his  power,  otherwise,  to 
•save  his  own  life,  or  prevent  the  intended  harm — such  as  retreat- 
ing as  far  as  he  can,  or  disabling  his  adversary,  without  killing 
him  if  it  be  in  his  power.  Second.  "When  the  attack  upon  him  is 
:so  sudden,  fierce  and  violent,  that  a  retreat  would  not  diminish, 
but  increase  his  danger,  he  may  instantly  kill  his  adversary  with- 
our  retreating  at  all.  Third.  "When,  from  the  nature  of  the 
attack,  there  is  reasonable  around  to  believe  that  there  is  a  design 
to  destroy  his  life,  or  commit  any  felony  upon  his  person,  the 
Trilling  the  assailant  will  be  excusable  homicide,  although  it  should 
afterward  appear  that  no  felony  was  intended. 

Of  these  three  propositions  the  last  one  is  the  only  one  that 
^vvill  be  contested  anywhere,  and  this  will  not  be  doubted  by  any 
-one,  who  is  conversant  with  the  principles  of  the  criminal  law. 
Indeed,  if  this  last  proposition  be  not  true,  the  preceding  ones, 
however  true  and  universally  admitted,  would,  in  most  cases,  be 
entirely  efficacious. 

There  are  two  kinds  of  self-defense :  the  one  which  is  justi- 
fiable, and  perfectly  innocent  and  excusable;  the  other,  which  is 
in  some  measure  blamable,  and  barely  excusable.  All  the  writers 
agree,  says  Sir  Michael  Foster,  that  there  are  cases  in  which  a  man 
may,  without  retreating,  oppose  force  to  force,  even  to  the  death. 
They  all  agree,  also,  that  there  are  cases,  in  which  the  defendant 
cannot  avail  himself  of  the  plea  of  self-defense,  without  showing 
that  he  retreated  as  far  as  he  could  with  safety,  and,  then,  merely 
for  the  preservation  of  his  own  life,  killed  the  assailant.  A  homi- 
cide committed  under  these  circumstances  is  excusable,  notwith- 
standing there  may  have  been  some  fault  in  the  defendant.  In 
•the  case  of  justifiable  self-defense,  the  injured  party  may  repel 
force  by  force  in  defense  of  his  person,  habitation,  or  property, 
against  one  who  manifestly  intendeth  and  endeavors  by  violence 
•or  surprise,  to  commit  a  known  felony  upon  either.  It  is  justly 
considered  that  the  right  in  such  case,  is  founded  in  the  law  of 
nature,  and  is  not,  nor  can  be,  superseded  by  any  law  of  society. 
There  being  at  the  time  no  protection  from  society,  the  individual 
i-  remitted  tor  protection  to  the  law  of  nature. 

"When  a  known  felony  is  attempted  upon  the  person,  be  it  to 
rob  or  murder,  the  party  assaulted  may  repel  force  for  force; 
.and  even  his  servant  then  attendant  upon  him,  or  any  other  per- 
son present,  may  interfere  to  prevent  mischief;  and  if  death 
ensue,  the  party  SO  interposing  will  be  justified. 


764  LAW    OF    EVIDENCE    IN    CRIMINAL    CASES. 

§  479.  Intent  to  Kill  is  the  Essence  of  the  Crime.— Many 

cases  have  been  decided,  in  all  of  which  has  been  held  that  the 
intention  to  kill  is  the  essence  of  the  offense,  therefore,  if  any  in- 
tention to  kill  exists,  it  is  willful;  if  this  intention  be  accompanied 
by  such  circumstances  as  evidence  a  mind  fully  conscious  of  its 
own  purpose  and  design,  it  is  deliberate;  and  if  sufficient  time  be 
afforded  to  enable  the  mind  fully  to  frame  the  design  to  kill,  and 
to  select  the  instrument,  or  to  frame  the  plan  to  carry  this  design 
into  execution,  it  is  premeditated.  The  law  fixes  upon  no  length 
of  time,  necessary  to  form  the  intention  to  kill,  but  leaves  the 
existence  of  a  fully  formed  intent  as  a  fact  to  be  determined  by 
the  jury,  from  all  the  facts  and  circumstances  in  evidence. 
Weston  v.  Com,.  Ill  Pa.  251. 

The  decisions  hold  clearly  enough,  that  no  particular  time  need 
elapse  between  the  formation  of  the  intent  to  kill,  and  the  act  of 
killing,  but  none  hold  that  there  need  be  no  time,  or  that  there 
could  be  murder  in  the  first  degree  where  there  was  no  intent, 
except  such  as  was  practically  concurrent  with  the  act.  Premedi- 
tation and  deliberation  necessarily  involve  the  idea  of  time. 
State  v.  Hockett,  70  Iowa,  442.  The  barbarous  manner  in  which 
a  homicide  was  committed  does  not  of  itself  furnish  any  basis  for 
the  defense  of  insanity.  United  States  v.  Zee,  2  Cent.  Kep.  692, 
4  Mackey,  489. 

The  killing  of  a  human  being  with  an  instrument  likely  to  pro- 
duce death,  is  a  stupendous  fact  as  a  guide  to  intention.  Weeks- 
v.  State,  79  Ga.  36. 

The  law  requires  all  persons  to  be  exceedingly  cautious  and 
careful  in  the  use  and  handling  of  tire-arms,  and  one  who  pur- 
posely  draws  upon  another  a  gun  or  pistol  does  an  unlawful  act, 
and  is  guilty  of  felonious  homicide  if  death  results  from  the  act, 
unless,  indeed,  the  act  of  pointing  the  weapon  is  justifiable  or 
excusable  upon  some  legal  ground.     Lange  v.  State,  95  Ind.  114. 

If  a  man  has^  a  beast  which  is  used  to  do  mischief,  and  he, 
knowing  this,  purposely  turns  it  loose,  though  barely  to  frighten 
people,  and  make  what  is  called  sport,  and  death  ensues,  it  is  as 
much  murder  as  if  he  had  incited  a  bear  or  a  dog  to  worry  the 
party;  and  if,  knowing  its  propensity,  he  suffers  it  to  go  abroad, 
and  it  kills  a  man,  even  this  is  manslaughter  in  the  owner.  4  Bl. 
Com.  197;  Palmer.  545;  1  Hale,  P.  C.  431. 

"  In  proving  murder  by  poison,  the  evidence  of  medical  men  is- 


MURDER    AND    MANSLAUGHTER.  765 

frequently  required,  and  in  applying  that  evidence  to  the  facts  of 
the  case,  it  is  not  unusual  for  difficulties  to  occur.  Upon  this  sub- 
ject the  following  observations  are  well  deserving  attention.  In 
general  it  may  be  taken  that  where  the  testimonials  of  professional 
men  are  affirmative,  they  may  be  safely  credited;  but  where 
negative,  they  do  not  appear  to  amount  to  a  disproof  of,  a  charge 
otherwise  established  by  strong,  various,  and  independent  evi- 
dence."    2  Roscoe,  Crim.  Ev.  948. 

§  4S0.  How  Death  may  be  Accomplished.— The  killing  may 
be  by  any  of  the  thousand  forms  of  death  by  which  life  may  be 
overcome.  4  Bl.  Com.  196.  But  there  must  be  a  corporal  injury 
inflicted;  and  therefore,  if  a  man,  by  working  upon  the  fancy  of 
another,  or  by  any  unkind  usage,  puts  another  into  such  a  passion 
of  grief  or  fear,  as  that  he  either  dies  suddenly  or  contracts  some 
disease,  in  consequence  of  which  he  dies,  that  is  no  felony,  because 
no  external  act  of  violence  was  offered  of  which  the  law  can  take 
notice.  1  Hale,  P.  C.  42(,».  Seven  modes  of  killing  are  enumer- 
ated by  Lord  Hale.  1.  By  exposing  a  sick  or  weak  person  to  the 
cold.  2.  By  laying  an  impotent  person  abroad  so  that  he  maybe 
exposed  to  and  receive  mortal  harm.  3.  By  imprisoning  a  man 
so  strictly  that  he  dies.  4.  By  starving  or  famine.  5.  By  wound- 
ing or  blows.  6.  By  poisoning.  7.  By  laying  noxious  and  noi- 
some filth  at  a  man's  door  to  poison  him.     1  Hale,  P.  C.  431. 

§  481.  Burden  of  Proving  Mitigating  Circumstances. — 
Upon  the  defendant  is  cast  the  burden  of  proving  circumstances 
of  mitigation,  or  that  justify  or  excuse  the  commission  of  the 
homicide.  This  does  not  mean  that  he  must  prove  such  circum- 
stances by  a  preponderance  of  the  evidence,  but  that  the  presump- 
tion that  the  killing  was  felonious  arises  from  the  mere  proof  of  the 
prosecution  of  the  homicide,  and  the  burden  of  proving  circum- 
stances of  mitigation,  etc.,  is  thereby  cast  upon  him.  He  is  only 
bound,  under  this  rule,  to  produce  such  evidence  as  will  create  in 
the  minds  of  the  jury  a  reasonable  doubt  of  his  guilt  of  the  offense 
charged.  People  v.  Boling,  83  Cal.  380;  Biggs  v.  State,  29  Ga. 
723,76  Am.  Dec.  630;  Pond  v.  People,  8  Mich.  150;  State  v. 
Christian,  66  Mo.  138;  Nichols  v.  Com.  11  Bush,  575. 

§482.  Evidence  of  Character  in  Cases  of. — "As  a  general 
rule  in  cases  of  homicide,  evidence  of  the  bad  character  of  the 
deceased  for  turbulence  and  violence  is  not  admissible,  unless  it 
tends  to  qualify,  or  explain  the  conduct  of  the  deceased,  or  to 


766  LAW    OF    EVIDENCE    IN    CRIMINAL    CASES. 

illustrate  the  motive  or  intent  of  the  accused  in  committing  the 
homicide — when  it  may  be  said  to  constitute  a  part  of  the  res 
gest(B.  The  character  of  the  deceased,  however  rash  and  blood- 
thirsty, furnishes,  per  se,  no  excuse  for  taking  his  life.  To  render 
such  evidence  competent  and  relevant,  the  conduct  of  the  deceased 
must  l>e  of  such  nature,  that  its  tendency,  under  the  circumstances- 
and  as  illustrated  by  his  character,  is  calculated  to  create  a  rea- 
sonable apprehension  of  great  bodily  harm.  The  purpose  of  such 
evidence  is  to  show  the  honesty  of  the  accused's  belief  of  immi- 
nent peril.  Franklin  v.  State,  29  Ala.  14;  Pritchett  v.  State,  22 
Ala.  39,  58  Am.  Dec.  250;  Stort  >j  v.  State,  71  Ala.  329;  DeArman 
v.  State,  71  Ala.  357.  Where  the  deceased,  at  the  time  the  fatal 
blow  was  struck,  was  making  no  demonstration  of  violence  against 
the  defendant,  spoke  no  words,  and  did  no  act,  which  could  tend, 
even  remotely,  to  produce  in  the  mind  of  the  defendant  any  ap- 
prehension of  harm.  His  character  for  turbulence  and  violence 
is  not  admissible."  Clopton,  J.,  in  Lang  v.  State,  84  Ala.  1.  See 
Keener  v.  State,  18  Ga.  191,  63  Am.  Dec.  269;  Wiggins  v.  Utah,. 
93  U.  S.  165,  23  L.  ed.  911. 

§  483.  Evidence  of  Death  by  Poisoning. — "It  would  be 
most  unreasonable  and  lead  to  the  grossest  injustice,  and,  in  some 
circumstances,  to  impunity  of  the  worst  of  crimes  to  require,  as  an 
imperative  rule  of  law,  that  the  crime  of  poisoning  shall  be  proved 
by  any  special  and  exclusive  medium  of  proof,  when  that  kind  of 
proof  is  unattainable,  and  especially  if  it  has  been  rendered  so  by 
the  act  of  the  offender  himself.  No  invariable  and  universal  rule, 
therefore,  can  be  laid  down,  and  every  case  must  depend  upon  its 
own  particular  circumstances;  and,  as  in  all  other  cases,  the  corpus 
dt  licti  must  be  proved  by  the  best  evidence  which  is  capable  of 
being  adduced."     Wills.  Circ.  Ev.  233. 

In  cases  of  this  kind  the  purchase  or  possession  of  poison  under 
false  pretenses  and  a  knowledge  of  its  properties  are  deemed 
among  the  most,  if  not  the  most  material  circumstances.  1 
Archb.  Crim.  Pr.  &  PI.  (8th  ed.)  856;  3  Whart.  Am.  Grim.  L. 
(7th  ed.)  §  3491a. 

Motive,  however  strong,  does  not  prove  the  crime.  Its  office  is 
to  aid  in  the  application  of  other  circumstances  that  point  toward 
guilt.  It  is  said  to  be  a  minor  or  an  auxiliary  fact,  from  which, 
when  established  in  connection  with  other  necessary  facts,  the 
main  or  primary  fact  of  guilt  may  be  inferred.     Pierson  v.  Peo- 


MURDER    AND   MANSLAUGHTER.  767 

pie,  18  Hun,  253.  "When  the  case  depends  upon  circumstantial 
evidence,  and  the  circumstances  point  to  any  particular  person  as 
the  criminal,  the  case  against  him  is  much  fortified  by  proof  that 
he  had  a  motive  to  commit  the  crime;  and  where  the  motive  ap- 
pears, the  probabilities  created  by  the  other  evidence  are  much 
strengthened.  Earle,  J.,  in  Pierscn  v.  People^  79  N.  Y.  436,  35 
Am.  Rep.  524. 

§  484.  Evidence  of  Blood  Stains  in  Cases  of  Homicide.— 

Stains  of  blood  found  upon  the  person  or  clothing  of  the  party 
accused,  have  always  been  recognized  among  the  ordinary  indicia 
of  homicide.  The  practice  of  identifying  them  by  circumstantial 
evidence,  and  by  the  inspection  of  witnesses  and  jurors,  has  the 
sanction  of  immemorial  usage  in  all  criminal  tribunals.  Proof  of 
the  character  and  appearance  of  the  stains  by  those  who  saw  them 
has  always  been  regarded  by  the  courts  as  primary  and  legitimate 
evidence.  It  is  in  its  nature  original  proof,  and  in  no  sense  sec- 
ondary in  its  character.  The  degree  of  force  to  which  it  is  enti- 
tled may  depend  upon  a  variety  of  circumstances,  to  be  consid- 
ered and  weighed  by  the  jury  in  each  particular  case;  but  its 
competency  is  too  well  settled  to  be  questioned  in  a  court  of  law. 
Science  has  added  new  sources  of  primary  evidence,  but  it  has 
not  displaced  those  which  previously  existed.  The  testimony  of 
the  chemist  who  has  analyzed  blood,  and  that  of  the  observer  who 
has  merely  recognized  it,  belong  to  the  same  legal  grade  of  evi- 
dence; and  though  the  one  may  be  entitled  to  much  greater  weight 
than  the  other  with  the  jury,  the  exclusion  of  either  would  be 
illegal.  Each  party  is  at  liberty  to  offer  such  proof  as  he  can,  and 
if  it  be  admissible  in  its  nature  and  relevant  to  the  issue,  it  can- 
not be  rejected  on  the  ground  that,  by  greater  diligence,  it  might 
have  been  made  more  satisfactory  and  conclusive.  Either  party 
has  the  right  to  resort  to  microscopic  or  chemical  tests,  but  neither 
is  bound  to  do  it,  and  neither  can  complain  of  the  other  for  the 
omission.     Porter,  J.,  in  People  v.  Gonzales,  35  X.  Y.  61. 

Dr.  Wharton  with  rare  felicity  touches  the  very  pith  and  mar- 
row of  this  entire  subject  in  section  777  of  his  Criminal  Evidence. 

"Scarcely  a  case  arises  where  this  issue  is  material  in  which  ex- 
perts have  not  appeared  ready  to  identify  dried  blood  as  human, 
and  by  this  process  to  supply  a  link  on  which  a  conviction  of  a 
capital  offense  may  be  made  to  rest.  It  is  perhaps  a  minor  matter 
that  in  this  way  enormous  expenses  are  heaped    not  only   on  the 


768  LAW    OF    EVIDENCE    IN    CRIMINAL    CASES. 

state,  but  on  the  accused.  Experts  are  brought  from  a  distance 
by  the  state  at  great  cost,  protracted  experiments  are  made  by 
them  afterwards  to  be  detailed  to  the  jury;  and  testimony  is  ad- 
duced which  the  defendant  must  meet  at  the  peril  of  his  life. 
Controvert  it  he  readily  may,  if  he  can  procure  the  means,  for  the 
great  weight  of  authority,  as  will  presently  be  seen,  is  that  such 
identification  cannot  be  accurately  determined.  But  to  procure 
this  testimony  may  be  impossible  for  him,  unless  the  prosecution 
assume  the  expense,  which  it  is  often  either  unwilling  or  unable 
to  do.  This  amounts  to  a  perversion  of  justice;  but  this  is  not  the 
chief  objection.  Supposing  experts  are  obtained  so  as  to  fully 
exhibit  to  the  jury  both  sides  of  this  vexed  question,  and  the  case 
goes  to  the  jury  on  their  testimony,  what  then?  Is  there  not 
danger  that  the  jury  may  regard  the  question  as  one  determined, 
not  by  ascertainable  physical  laws,  but  by  their  own  discretion  or 
on  the  authority  of  particular  experts  %  It  would  seem,  in  view 
of  these  dangers,  and  in  view  of  the  more  recent  explorations  of 
scientists  who  have  viewed  the  question,  not  as  advocates  retained 
by  a  particular  party,  but  as  dispassionate  investigators,  that  the 
time  has  now  arrived  in  which  it  is  the  duty  of  courts  to  advise 
juries,  in  all  cases  in  which  it  is  proposed  to  rest  a  conviction  on 
the  identification  of  certain  blood-stains  as  human,  that  as  matter 
of  fact  no  such  identification  can  be  made  out  beyond  reasonable 
doubt.  That  stains  look  like  blood  may  be  proved  by  expert  and 
non-expert;  that  they  are  dried  human  blood  can  be  satisfactorily 
proved  by  no  one." 

In  a  highly  instructive  discussion  of  this  subject  by  Mr.  Rogers 
in  his  well  known  work  on  Expert  Testimony,  p.  141,  I  find  the 
following : 

"  When  blood  is  dried  on  clothing,  and  it  is  necessary  to  extract 
the  corpuscles  by  means  of  a  liquid  of  a  different  nature  from 
the  serum,  we  cannot  rely  on  slight  fractional  differences,  since 
we  cannot  be  sure  that  the  corpuscles,  after  having  once  dried, 
will  ever  acquire,  in  a  foreign  liquid,  the  exact  size  which  they 
had  in  serum.  Medical  evidence  must,  therefore,  be  based,  in 
such  cases,  on  mere  speculation.     .     .     . 

"There  are  no  certain  methods  of  distinguishing  microscopically, 
or  chemically,  the  blood  of  a  human  being  from  that  of  an  animal, 
when  it  has  once  been  dried  on  an  article  of  clothing."  Citing 
Satterthwaite's  Manual  of  Histology,  p.  30. 


MURDER    AND    MANSLAUGHTER.  769 

Common  observers,  having  special  opportunity  for  observation, 
may  testify  to  their  opinions  as  conclusions  of  fact,  although  they 
are  not  experts,  if  the  subject-matter  to  which  the  testimony  re- 
lates cannot  be  reproduced  or  described  to  the  jury  precisely  as  it 
appeared  to  the  witness  at  the  time,  and  the  facts,  upon  which 
the  witness  is  called  to  express  his  opinion,  are  such  as  men 
in  general  are  capable  of  comprehending  and  understanding. 
Whether  a  witness,  not  an  expert,  is  qualified  to  express  his  opin- 
ion as  a  conclusion  of  fact,  is  to  be  decided  by  the  judge  presid- 
ing at  the  trial,  and  his  finding  is  not  open  to  revision  in  this 
court,  unless,  upon  a  report  of  all  the  evidence,  it  is  shown  to  be 
without  foundation,  or  is  based  on  some  erroneous  application  of 
legal  principle.-.  Com.  v.  Sturtivant,  117  Mass.  Vl'l,  19  Am. 
Eep,  401. 

On  the  trial  of  an  indictment  for  murder,  a  witness  familiar 
with  blood,  who  had  examined,  with  a  lens,  a  blood-stain  on  a 
coat,  when  it  was  fresh,  and  who  testified  to  its  appearance  at  the 
time  he  examined  it,  and  that  it  was  not  in  the  same  condition  at 
the  trial,  was  permitted  to  testify  that  its  appearance  when  he 
examined  it  indicated  the  direction  from  which  it  came,  and  that 
it  came  from  below  upward,  although  he  had  never  experimented 
with  blood  or  other  fluid  in  this  respect.  Com.  v.  Sturtivant, 
supra. 

The  views  of  the  Wisconsin  supreme  court  on  one  branch  of 
its  subject  must  be  regarded  as  substantially  embodying  the  jurid- 
ical sentiment  of  this  country.  In  a  recent  case  decided  in  that 
court  (Knoll  v.  State,  55  Wis.  249,  42  Am.  Eep.  704)  a  physician 
had  testified  as  an  expert  in  regard  to  an  examination  made  by 
him  with  a  microscope  of  certain  blood  stains  found  upon  pieces 
of  cloth  and  wood.  He  gave  it  as  his  opinion,  founded  upon 
such  examination,  that  some  of  the  stains  were  caused  by  human 
blood  corpuscles.  For  the  purpose  of  discrediting  the  witness  it 
was  proposed  on  the  part  of  the  defense  to  read  opinions  stare! 
in  certain  medical  works  on  this  subject.  The  court  would  not 
permit  this  to  be  done,  holding,  in  effect,  that  as  Dr.  Piper  had 
not  referred  to  any  medical  work,  and  did  not  rely  upon  the  au- 
thoritv  of  medical  writers  to  support  his  view.-,  hut  testified  from 
his  own  knowledge  and  experience,  it  was  not  proper  to  read  from 
medical  works  to  contradict  him.  There  can  he  no  doubf  of  tin; 
correctness  of  this  decision,  which  is  sustained  by  the  authorities 
49 


770  LAW    OF    EVIDENCE    IN    CRIMINAL    CASES. 

referred  to  by  Mr.  Justice  Cassoday  in  Stilling  v.  Thorp,  54  Wis, 
523,  41  Am.  Rep.  GO. 

Where  a  medical  witness  has  testified  as  from  his  own  knowl- 
edge  and  experience  to  a  matter  which  is  within  his  province  as 
an  expert  (as  that  blood  stains  were  caused  by  human  blood  cor- 
puscles) he  cannot  be  impeached  by  reading  to  the  jury  extracts 
from  medical  wTorks.    Knoll  v.  State,  55  Wis.  249,  42  Am.  Rep.  704. 

Proof  of  finding,  six  months  after  the  alleged  murder,  blood 
on  timbers  and  boards  of  the  barn,  where  according  to  the  testi- 
mony the  body  had  been,  was  held  competent  as  tending  to  cor- 
roborate. So  far  as  the  lapse  of  time  detracted  from  the  force  of 
evidence,  it  is  for  the  consideration  of  the  jury.  After  evidence 
had  been  given  tending  to  identify  certain  boards  as  those  taken 
from  the  prisoner's  sleigh,  and  that  spots,  caused  by  the  flow  of 
blood  from  the  dead  body,  had  been  on  them  since  the  night  of 
the  alleged  removal,  there  being  no  evidence  that  they  had  been 
tampered  with  since  that  time  or  were  in  any  different  condition, 
save  that  hogs  had  been  dressed  upon  them,  evidence  of  an  expert 
was  received  as  to  certain  experiments  determining  that  the  spots 
upon  the  board  were  some  of  them  human  and  some  hog's  blood. 
Held,  no  error,  and  that  the  facts  that  the  boards  had  been  a  long 
time  out  of  the  possession  of  the  prisoner  and  had  been  used  by 
other  people,  while  they  affected  the  question  as  to  the  identity  of 
the  boards  and  of  the  blood  spots,  did  not  render  such  evidence 
inadmissible.     Lindsay  v.  People,  63  N.  Y.  143. 

Elaborate  treatment  of  this  subject  is  found  in  a  discriminat- 
ing article  by  Hon.  Clark  Bell,  reprinted  in  the  September  (1892) 
number  of  the  Medico  Legal  Journal,  under  the  title  of  "Blood 
and  Blood  Stains  in  Medical  Jurisprudence." 

§  485.  Evidence  should  Convince  Jury  Beyond  Rea- 
sonable Doubt. — In  cases  of  homicide  before  the  defendant  can 
be  convicted — this  being  a  crime  involving  a  capital  punishment 
—  the  jurors  should  be  satisfied  upon  the  evidence  disclosed,  that 
the  accused  is  guilty ;  and  their  belief  in  his  guilt  should  be 
beyond  a  reasonable  doubt.  La  tig  v.  State,  84  Ala.  1;  Gunter  v. 
State,  83  Ala.  96;  Hudspeth  v.  State,  50  Ark.  534;  People  v.  Gos- 
law,  73  Cal.  323;  Territory  v.  Bannigan,  1  Dak.  432;  Bond  v. 
State,  21  Fla.  738;  Weeks  v.  State,  79  Ga.  36;  Marshall  v.  State,. 
74  Ga.  26;  Watt  v.  People,  1  L.  R.  A.  403,  126  111.  9;  Guetig  v. 
State,  66  Ind.  94,  32  Am.  Rep.  99;  Stale  v.  Trout,  74  Iowa,  545;. 


MURDER   AND    MANSLAUGHTER.  771 

Craft  v.  State,  3  Kan.  450;  Payne  v.  Com.  1  Met.  (Ky.)  370;  Com. 
v.  Robinson,  146  Mass.  571;  Sta&  v.  George,  62  Iowa,  682;  State 
v.  Johnson,   37  Minn.  493;    McKenna  v.  State,   61  Miss.  589; 
Swigar  v.  Peopte,  109  111.  272;  State  v.  TFa^r,  9S  Mo.  93;  State 
v.  Anders m,  86  Mo.  309;  Territory  v.  Clayton,  8  Mont.  1;  Cas^y 
v.  State,  20  Neb.  138;  State  v.  McCluer,  5  Xev.  132;  Peopfe  v. 
Reich,  110  X.  Y.  660;  People  v.  WiOson,  109  X.  Y.  345;  Step&  //* 
v.  People.  4  Park.  Crim.  Kep.  396;  State  v.  Bracer,  98  X.  C.  6u7 
State  v.  Harrison,  50  X.  C.  115;  State  v.  Anderson,  10  Or.  448 
Tiffany  v.  Cfrm.  121  Pa.  105;  McLain  v.  Cbm.  99  Pa.  86;  Henry 
v.  State,  11  Humph.  224;  P<*?  v.  State,  10  Lea,  673;  Alexander 
v.  State,  25  Tex.  App.  260;   //-//V  v.  State,  24  Tex.  App.  103 
Williams  v.  State,  15  Tex.  App.  401;  Kemp  v.  State,  11  Tex 
App.  174;  Russell  v.  Com.  78  Va.  400;   Zteaw  v.  (.',,/„.  32  Gratt 
It  12;   Timmerman   v.  Territory,  3  Wash.  Terr.  445;  Territory  v 
Manton,  8  Mont.  95;   £r0m<  :  v.  State,  15  Tex.  App.  327;  Scott  v 
State,  23  Tex.  App.  452;  Massengalt  v.  State,  24  Tex.  App.  181 
Meyers  v.  Com.  SS  Pa.   131;  /Vy/te  v.  Lyons,  110  X.  Y.  618 
Kendrick  v.  State,  55  Miss.  4:;''.;  Stafc  v.  Clouser,  69  Iowa,  313; 
Davis  v.  State,  74  Ga.  S69;  <><■<  rin<in  v.  State,  49  Ark.  364;  i?<?s- 
UM0  v.  State,  63  Ala.  307,  35  Am.  Rep.  2";  State  v.  Porter,  34 
Iowa,  131;  Ortwein  v.  6W.  70  Pa.  414,  IS  Am.  Rep.  42<>;  Com. 
v.  Drum,  58  Pa.  9;    TTa'/T«SM   v.   CW.  37  Pa.  45;  Kilpatrich  v. 
.  31  Pa.  198;  State  v.  ,/<,«<.*,  97  X.  C.  469;  People  v.  C%- 
wmfe,  110  X.  Y.  23. 

§  486.  Note  on  Expert  3Iedieal  Evidence. — Apropos  of  this 
discussion  I  will  refer  to  an  article  published  in  Yol.  6,  p.  126,  of 
the  Columbia  Law  Times,  the  intent  of  which  is  to  emphasize  the 
uncertainty  and  distrust  that  so  frequently  attends  the  testimony 
of  experts  especially  in  capital  cases.  The  article  refers  particu- 
larly to  the  comments  of  Lord  Campbell  in  The  Tracey  Peer- 
age,  10  Clark  &  F.  154,  to  the  equally  incisive  criticisms  of 
Justices  Earl  and  Grey  of  the  New  York  court  of  appeals  in 
Ferguson  v.  Hubbell,  97  X.  Y.  507^and  People  v.  K  n,h  ,\  Ll'.i  X. 
Y.  580,  respectively,  and  in  the  concluding  paragraphs  quotes 
Dr.  Wharton's  familiar  phillipic  against  the  whole  fraternity  of 
Medical  Expert-.  Whart.  Crim.  Ev.  §  420.  In  many  ways  it 
will  be  found  instructive  as  indicating  the  extreme  caution  that 
should  accompany  the  consideration  of  such  evidence. 


CHAPTER  LV. 
FORGERY. 

§  487.  Forgery  Defined.  '■  * 

488.  Wliat  ('misfit iilcs  an  Intent  to  Defraud. 

489.  Wliat  is'  Making  a  False  Document. 

490.  What  Constitutes  Uttering. 

491.  What  Evidence  is  Pertinent. 

492.  Declarations  must  be  Considered  in  their  Entirety. 

493.  Burden  of  Proof  is  upon  Prosecution. 

494.  Other  Forgeries  may  be  Shown. 

495.  Wliat  State  must  Show  in  Case  of  Bill,  Note,  Chech,  etc. 

496.  Evidence  of  Handwriting. 

497.  Divert  Evidence  Seldom  Required. 

498.  Neio  York  Code  Provisions. 

§  487.  Forgery  Defined. — Forgery  is  defined  to  be  the  signing 
by  one  without  authority,  and  falsely,  and  with  intent  to  defraud, 
the  name  of  another  to  an  instrument,  which,  if  genuine,  might 
apparently  he  of  legal  efficacy  or  the  foundation  of  a  legal  liabil- 
ity. State  v.  Thompson,  19  Iowa,  299;  Waterman  v.  State,  67 
111.  91. 

In  Com.  v.  Costello,  120  Mass.  307,  where  the  defendant  was 
charged  with  forging  a  bond  to  be  used  for  the  purpose  of  dis- 
solving an  attachment,  the  court  held  that  an  instrument  falsely 
made  with  intent  to  defraud  is  a  forgery,  although  if  it  had  been 
genuine,  other  steps  must  have  been  taken  before  the  instrument 
would  have  been  perfected,  and  those  steps  were  not  taken.  It 
was  contended  that  the  bond  was  worthless  upon  its  face,  as  it  was 
not  approved,  and  until  approved,  could  not  serve  to  dissolve  the 
attachment.  The  court  said:  "It  is  true  that  the  false  making 
of  an  instrument  merely  frivolous,  or  one  which  upon  its  face  is 
clearly  void,  is  not  forgery,  because  from  its  character  it  could 
not  have  operated  to  defraud,  or  been  intended  for  that  purpose; 
but  if  the  instrument  is  one  made  with  intent  to  defraud  although 
before  it  can  have  effect  other  steps  must  be  taken,  or  other  pro- 
ceedings had  upon  the  basis  of  it,  then  the  false  making  is  a  for- 
gery, notwithstanding  such  steps  may  never  have  been  taken  or 

772 


FORGERY.  773 

proceedings  had."  In  Ex  parte  Finley,  6Q  Cal.  264,  the  defend- 
ant was  convicted  of  forging  a  decree  of  divorce,  and  it  was  held 
that  the  information  was  sufficient,  without  averring  a  marriage 
of  the  parties  to  the  forged  decree,  as  "on  its  face  the  writing 
shows  that  it  may  have  been  used  to  consummate  a  fraud." 

An  instrument  in  writing  of  which  forgery  can  be  predicated 
is  one  which,  if  genuine,  would  operate  as  the  foundation  of 
another  person's  liability  (Com.  v.  Ray,  09  Mass.  446;  3  Greenl. 
Ev.  §  103;  Reg.  v.  Boult,  2  Car.  &  K.  604;  Reed  v.  State,  28  Ind. 
396;  Gar  mire  v.  State,  2  West.  Rep.  284,  104  Ind.  444;  2  Bishop, 
Crim.  L.  §  536;  State  v.  Cook,  52  Ind.  574;  Abbott  v.  State,  59 
Ind.  70)  though  the  contract  need  not  be  perfectly  set  out,  but 
it  must  be  in  the  instrument  and  arise  from  and  be  imported  by 
the  terms  used.     Garmire  v.  State,  and  Com.  v.  Ray,  supra. 

The  phrase  "instrument  in  writing"  or  "instrument  of  writing," 
means  a  legal  writing  or  written  agreement  embodying  a  promise, 
a  contract,  or  obligation.  1  Bouvier,  Law  Diet.  728;  1  Rapalje  & 
L.  Law  Diet,  Q66;  Rex  v.  Moore,  2  Car.  &  P.  236;  Smith  v. 
AdMns,  L.  II.  14  Eq.  402;  State  v.  Fenly,  18  Mo.  445. 

When  a  note  or  instrument  is  spoken  of  as  "forged,"  it  is  under- 
stood to  be  a  counterfeit  one,  and  this  understanding  is  in  con- 
formity with  the  definitions  given  to  the  two  words  by  our  best 
lexicographers.  Webster's  Dictionary,  Worcester's  Dictionary, 
Imperial  Dictionary,  etc.  Whenever,  therefore,  the  expression 
"forged  note,"  or  "counterfeit  note,"  is  used,  we  understand  the 
speaker  to  refer  to  an  instrument  by  which  some  one  has  under- 
taken to  utter  and  pass,  as  the  genuine  and  personal  act  of  another, 
something  which  he  has  himself  prepared  in  the  similitude  and 
likeness  of  the  other's  act,  and  by  such  similitude  and  likeness, 
which  he  has  endeavored  to  impress  upon  the  spurious  instru- 
ment, to  deceive  and  defraud.  In  other  words,  forgery  is  the 
attempted  imitation  of  another's  personal  act,  and  by  the  means 
of  such  imitation  to  cheat  and  defraud;  and  not  the  doing  of 
something  in  the  name  of  another,  which  does  not  profess  to  be 
the  other's  personal  act,  but  that  of  the  doer  thereof,  who  claims 
and  insists  by  and  in  the  act  itself,  that  he  is  authorized  to 
obligate  the  individual,  whom  he  is  assuming  to  obligate  pre- 
cisely as  he  undertakes  to  do.  2  Russell,  Crimes  (9tb  Am.  ed.), 
946,947;  Reg.  v.  White,  1  Den.  C.  C.  208,  2  Cox,  C.  C.  210, 
2  Car.  &  K.  404;  Rex  v.  Story,  Russ.  &   R.  81;  Rex  v.  Arscotty 


774  LAW    OF    EVIDENCE    IN    CRIMINAL    CASES. 

6  Car.  &  P.  40S;  2  Bishop,  Crirn.  L.  (7th  ed.)  §  582;  2  Whart. 
Crim.  L.  (7th  ed.)  §  1432;  2  Archb.  Crim.  Pr.  &  PI.  (7th  ed.) 
819;  2  Archb.  Crim.  Pr.  &  PI.  (Pomeroy's  ed.)  1584;  Conner's 
Case,  3  City  Hall  Rec.  59;  Re  Heilbonn,  1  Park.  Crim.  Rep.  429; 
Com.  v.  Baldwin,  11  Gray,  197,  71  Am.  Dec.  703;  State  v. 
Young,  46  N.  H.  266,  88  Am.  Dec.  212. 

§  488.  What  Constitutes  an  Intent  to  Defraud. — "An  intent 
to  defraud  is  presumed  to  exist  if  it  appears  that  at  the  time  when 
the  false  document  was  made  there  was  in  existence  a  specific 
person,  ascertained  or  unascertained,  capable  of  being  defrauded 
thereby,  and  this  presumption  is  not  rebutted  by  proof  that  the 
offender  took  or  intended  to  take  measures  to  prevent  such  per- 
son from  being  defrauded  in  fact;  nor  by  the  fact  that  he  had,  or 
thought  he  had,  a  right  to  the  thing  to  be  obtained  by  the  false 
document. 

"  The  presumption  may  be  rebutted  by  proof  that  at  the  time 
when  the  false  document  was  made  there  was  no  person  who 
could  be  reasonably  supposed  by  the  offender  to  be  capable  of 
being  defrauded  thereby;  but  it  is  not  necessarily  rebutted  by 
proof  that  there  was  no  person  who  could  in  fact  be  defrauded 
thereby. 

"It  is  uncertain  whether,  in  the  absence  of  any  evidence  as  to 
the  existence  of  any  person  who  can  be  defrauded  by  a  false  docu- 
ment, an  intent  to  defraud  will  or  will  not  be  presumed  from  the 
mere  making  of  the  document. 

"An  intent  to  deceive  the  public  or  particular  persons,  but  not 
to  commit  a  particular  fraud  or  specific  wrong  upon  any  particu- 
lar person,  is  not  an  intent  to  defraud,  within  the  meaning  of  this 
article."     Stephen,  Dig.  Crim.  L.  art.  355. 

Proof  of  participation  in  the  forgery  of  a  promissory  note,  and 
in  the  use  of  it  as  genuine,  is  of  itself  proof  of  the  guilty  intent. 

Proof  of  like  acts  is  allowed  in  some  cases  to  show  a  criminal 
intent  in  the  case  of  an  act  which  might  be  an  innocent  one;  but 
evidence  of  participation  in  forging  a  note,  and  using  it  as  genu- 
ine, is  of  itself  proof  of  guilty  intent.  Hence  the  reason  of  the 
rule  fails  in  that  case.     People  v.  White,  62  Hun,  114. 

§489.  What  is  Making  a  False  Document. — "To  make  a 
false  document  is 

"  (a)  to  make  a  document  purporting  to  be  what  in  fact  it  is  not ; 

"(b)  to  alter  a  document,  without  authority,  in  such  a  manner 


FORGER  V.  775 

that  if  the  alteration  had  been  authorized  it  would  have  altered 
the  effect  of  the  document; 

"  (c)  to  introduce  into  a  document,  without  authority,  whilst  it 
is  being  drawn  up,  matter  which,  if  it  had  been  authorized,  would 
have  altered  the  effect  of  the  document; 

"(d)  to  sign  a  document; 

"  (i.)  in  the  name  of  any  person  without  his  authority,  whether 
such  name  is  or  is  not  the  same  as  that  of  the  person  signing; 

"(n.)  in  the  name  of  any  fictitious  person  alleged  to  exist, 
whether  the  fictitious  person  is  or  is  not  alleged  to  be  of  the  same 
name  as  the  person  signing; 

"(in.)  in  a  name  represented  as  being  the  name  of  a  different 
person  from  that  of  the  person  signing  it,  and  intended  to  be  mis- 
taken for  the  name  of  that  person; 

"  (iv.)  in  a  name  of  a  person  personated  by  the  person  signing 
the  document,  provided  that  the  effect  of  the  instrument  depends 
upon  the  identity  between  the  person  signing  the  document  and 
the  person  whom  he  professes  to  be. 

"  But  it  is  not  making  a  false  document 

"  (a)  to  procure  the  execution  of  a  document  by  fraud; 

"(b)  to  omit  from  a  document  being  drawn  up  matter  which 
would  have  altered  its  effect  if  introduced,  and  which  might  have 
been  introduced,  unless  the  matter  omitted  qualities  the  matter 
inserted; 

"(c)  to  sign  a  document  in  the  name  of  a  person  personated  by 
the  person  who  signs  it,  provided  that  the  effect  of  the  instrument 
does  not  depend  upon  his  identity  with  that  person. 

"  (d)  It  is  not  essential  to  the  making  of  a  false  document  that  the 
false  document  should  be  so  framed  that,  if  genuine,  it  would  have 
been  valid  or  binding,  provided  that,  in  eases  in  which  the  forgery 
of  any  particular  instrument  is  made  a  specific  offense  by  any  stat- 
ute, the  false  document  must,  in  order  that  the  offense  may  be 
completed,  fall  within  the  description  given  in  the  Act. 

"(e)  The  fact  that  a  document  is  made  t<>  resemble  that  which  it 
purports  to  he,  and  is  not,  is  evidence,  tor  the  consideration  of 
the  jury,  of  an  intent  to  defraud,  hut  is  nut  essential  to  the  making 
of  a  false  document. 

"Provided  that,  in  cases  in  which  the  forgery  of  any  particular 
instrument  is  made  a  specific  offense  by  any  statute,  the  false 
document  must  have  such  a  resemblance  to  the  document  which 


116  LAW    OF   EVIDENCE   IN    CRIMINAL   CASES. 

it  is  intended  to  resemble  as  to  be  likely  to  deceive  a  common 
person."     Stephen,  Dig.  Crim.  Law,  arts.  356. 

§  490.  What  Constitutes  Uttering. — In  People  v.  Caton,  25 
Mich.  392,  Judge  Cooley  says :  "  To  constitute  an  uttering,  it  is 
not  necessary  that  the  forged  instrument  should  have  been  actually 
received  as  genuine  by  the  party  upon  whom  the  attempt  to  de- 
fraud is  made.  To  utter  a  thing  is  to  offer  it,  whether  it  be  taken 
or  not." 

Putting  a  forged  deed  on  record,  or  averring  it  in  pleading  as 
a  genuine  deed,  is  uttering  and  publishing  it,  within  the  meaning 
of  the  statute.  Paige  v.  People,  3  Abb.  App.  Dec.  439,  6  Park. 
Crim.  Rep.  683. 

The  word  "uttering"  would  seem  to  be  more  accurately  defined 
by  the  word  "  negotiating,"  which  means,  in  its  popular  sense,  an 
intercourse  of  business,  trafficing  or  treating,  accordingly,  not  only 
a  sale  or  paying  away  a  counterfeit  note  or  indorsement,  but 
obtaining  credit  on  it  in  any  form,  as  by  leaving  it  in  pledge,  or 
indeed,  offering  it  in  dealing,  though  it  be  refused,  will  amount 
to  an  uttering  and  publishing.  The  delivery  of  a  counterfeit  note 
to  an  innocent  person  for  the  purpose  of  having  it  passed  away,  is 
per  se  an  uttering  by  the  prisoner,  although  in  another  case,  the 
uttering  seems  not  considered  complete  till  the  innocent  party  has 
actually  tendered  the  note  in  payment.  This  rule  is  based  upon 
the  doctrine  that  where  an  innocent  person  is  employed  for  a 
criminal  purpose,  the  employer  must  be  answerable.  Uttering 
implies  two  parties,  a  party  acting,  and  a  party  acted  upon.  If, 
by  the  way  of  sale,  there  must  be  a  vendee;  if,  by  pledge,  there 
must  be  a  pledgee;  if,  by  offer,  there  must  be  one  present  to  hear 
the  offer,  and  if,  simply  by  declaring  its  goodness,  there  must  be 
some  one  addressed  as  a  reader  or  hearer.  The  crime  of  uttering 
and  publishing,  is  therefore  not  complete  until  the  paper  is  trans- 
ferred, and  comes  to  the  hands  or  possession  of  some  person  other 
than  the  felon,  his  agent  or  servant.  People  v.  Pathlun,  21 
Wend.  509. 

To  utter  and  publish  an  instrument,  is  to  declare  or  assert 
directly  or  indirectly,  by  words  or  actions,  that  it  is  good.  2 
Archb.  Crim.  Pr.  &  PI.  S46,  note. 

The  crime  of  forgery  is  one  felony.  That  may  be  complete 
without  any  uttering  and  even  without  publication.  2  Russell, 
Crimes  (Am.  ed.  1836)  295,  and  cases  cited.      Uttering  is  another 


FORGERY.  777 

and  distinct  felony.  Even  delivery  to  a  guilty  agent,  for  the  pur- 
pose of  uttering,  thus  absolutely  and  irrevocably  parting  with  the 
paper,  and  though  the  agent  complete  the  uttering,  leaves  the 
employer  but  an  accessory.  The  principal  crime  is  committed  by 
the  agent.  Till  he  has  performed  his  office  there  can  be  neither 
accessory  nor  principal.  This  alone  shows  that  the  disponee  must 
be  reached.  The  same  thing,  where  the  agent  is  innocent,  makes 
the  employer  a  principal.  The  distinction  lies  in  the  doctrine  of 
principal  and  accessory,  a  doctrine  peculiar  to  felonies;  and  the 
distinction  cannot  be  maintained,  if  a  mere  delivery  for  the  pur- 
pose of  negotiation  is  in  itself  an  uttering.  People  v.  Rathbun, 
21  Wend.  534. 

§  491.  What  Evidence  is  Pertinent. — The  English  authori- 
ties tenaciously  maintain  that  any  evidence  is  pertinent,  which 
tends  to  show  an  unauthorized  filling  in  of  a  blank  check,  draft, 
promissory  note,  or  like  instrument  of  a  commercial  character,  as 
under  their  decisions,  such  an  unauthorized  filling  in  of  the  blank 
paper,  amounts  to  forgery. 

In  Rex  v.  Hart,  7  Car.  &  P.  652,  the  prisoner  was  given  an  accept- 
ance, blank  as  to  amount,  with  authority  to  fill  it  in  for  £200. 
He  filled  it  in  for  £500.  This  was  held  to  be  forgery,  and  upon 
the  point  being  reserved  the  conviction  was  sustained  by  all  the 
English  judges.  In  Reg.  v.  Bateman,  1  Cox,  C.  C.  186,  it  was 
said  that  where  a  check  is  given  with  a  certain  limited  authority, 
the  agent  is  confined  strictly  within  the  limits  of  that  authority, 
and  that  if  he  fills  in  the  check  with  a  different  amount  from  that 
authorized,  or  if,  after  the  authority  is  at  an  end,  he  fills  it  with 
any  amount  whatever,  it  is  clearly  forgery.  The  doctrine  of  L'<  x 
v.  Hart,  was  followed  in  Reg.  v.  Wilson,  2  Car.  &  K.  527.  There 
the  prisoner  was  authorized  to  fill  in  the  amount  due  on  a  bill  for 
£150  and  interest,  then  to  get  the  check  cashed  and  pay  the  bill. 
Instead  of  doing  this,  he  filled  in  £250  and  retained  part  of  the 
proceeds,  claiming  that  it  was  due  him  for  salary.  This  was  hold 
to  be  forgery.  Where  the  authority  is  general,  a  different  rule 
prevails.  Thus,  in  Reg.  v.  Richardson,  2  Fost.  &  V.  343,  the 
clerk  had  authority  to  draw  checks  upon  his  employer's  bank,  nol 
only  to  the  order  of  the  creditors  of  the  firm,  but  to  his  own 
order,  for  such  sums  as  he  deemed  necessary  to  pay  the  cash  dis- 
bursements of  the  business.  Upon  one  occasion  ho  drew  a  check  to 
his  own  order  for  £11,  10s,  the  proceeds  of  which  he  appropriated. 


778  LAW    OF    EVIDENCE.   IN    CRIMINAL    CASES. 

He  was  acquitted  of  forgery  and  put  on  trial  for  embezzlement, 
and  the  court  held  that  the  prisoner  "  could  not  be  convicted  of 
forgery,  inasmuch  as  having  a  general  authority  to  draw,  he  did 
not  necessarily  exceed  his  authority  when  he  drew  the  check;  and 
that  the  criminal  act,  if  any,  was  the  subsequent  appropriation  of 
it."  In  that  case,  however,  the  distinction  is  observed,  in  the 
statement  of  facts,  that  the  clerk  was  not  bound  always  to  draw 
the  checks  in  favor  of  a  particular  creditor,  but  had  authority  to 
draw  generally  and  pay  the  creditor  with  cash. 

The  principle  of  the  English  case.-  seems  to  have  been  generally 
followed  in  this  country.  Whart.  Am.  Crim.  L.  (8th  ed.)  §§  671, 
672;  People  v.  Graham,  6  Park.  Crim.  Rep.  135;  Wilson  v.  South 
Park  Comrs.  70  111.  46;  State  v.  Maxwell,  47  Iowa,  454;  Biles  v. 
Com.  32  Pa.  529,  75  Am.  Dec.  568;  State  v.  Kroeyer,  47  Mo.  552; 
State  v.  Flanders,  38  N.  H.  324.  The  only  cases  where  a  doubt 
is  expressed  as  to  the  rule  are  Putnam  v.  Sullivan,  4  Mass.  45,  3 
Am.  Dec.  206,  and  Van  Buzer  v.  Home,  21  K  Y.  531.  These, 
however,  were  civil  actions  upon  paper  which  were  fraudulently 
used,  or  in  which  the  blank  amount  was  fraudulently  increased 
beyond  the  sum  authorized.  They  were  properly  decided  upon 
the  estoppel  principle,  and  the  doubts  which  were  expressed  upon 
the  point  in  question  proceeded  upon  the  mistaken  idea  that,  if 
the  paper  was  forged  in  the  sense  of  the  criminal  law,  it  would  be 
illogical,  in  a  civil  action,  to  hold  the  persons  who  signed  it.  But 
there  is  nothing  incongruous  between  a  definition  of  forgery, 
upon  which  the  guilty  agent  may  be  punished  criminally,  and  a 
civil  rule  that,  notwithstanding  the  forgery,  one  who  signed  the 
paper  in  blank,  intrusted  it  to  such  guilty  agent  and  conferred 
upon  the  latter  the  power  of  defrauding  the  innocent,  shall  suffer 
rather  than  the  victim.     People  v.  Dickie,  62  Hun,  400. 

§  492.  Declarations  must  be  Considered  in  their  Entirety. 
— If  the  prosecution  lies  on  the  confession  alone,  the  prisoner  is 
entitled  to  the  full  effect  of  that  portion  of  the  confession  which 
goes  in  his  favor;  but  if  there  is  other  evidence  upon  which  the 
prosecution  can  with  justice  insist  upon  a  conviction,  the  jury 
may,  if  they  think  proper,  convict,  notwithstanding  the  confes- 
sion alone  would  be  sufficient.  In  other  words,  if  the  prosecution 
uses  the  declaration  of  the  prisoner,  the  whole  of  it  must  be  taken 
t<  »gether.  One  part  cannot  be  selected,  and  the  other  left;  and  if 
there   be   no   other   evidence   incompatible   with  it,   the    entire 


FORGERY.  779 

■declaration  of  the  prisoner  must  be  taken  as  true.  But  if,  after 
the  whole  of  the  statement  of  the  prisoner  is  in  evidence,  the 
prosecution  is  in  a  situation  to  contradict  any  part  of  it,  it  is  at 
liberty  to  do  so,  and  then  the  statement  of  the  prisoner  is  in  evi- 
dence, the  prosecution  is  in  a  situation  to  contradict  any  part  of 
it,  it  is  at  liberty  to  do  so,  and  then  the  statement  of  the  prisoner, 
and  all  the  other  evidence,  must  be  left  to  the  jury  for  their  con- 
sideration, precisely  as  in  any  other  case,  when  one  part  of  the 
evidence  is  contradictory  to  another.     Roscoe,  Crim.  Ev.  55. 

§  403.  Burden  of  Proof  is  upon  Prosecution.  —  In  all 
criminal  cases  the  burden  is  upon  the  prosecution  to  produce  such 
evidence  as  will  satisfy  the  jury  that  the  charge  against  the 
accused  is  true, — such  evidence  that,  when  the  jury  has  considered 
it,  and  all  the  rest  of  the  evidence,  there  will  remain  no  doubt 
{for  which  a  sensible  reason  can  be  given)  that  the  accused  is  guilty. 
After  fairly  considering  the  evidence,  if  there  remains  a  reason- 
able doubt  upon  the  evidence,  or  because  of  the  want  of  evidence 
about  the  guilt  of  the  accused,  he  is  entitled  to  his  acquittal.  If, 
on  the  other  hand,  the  evidence  is  of  that  character  that  a  con- 
scientious and  sensible  man  may  be  satisfied  that  the  prisoner  is 
guilty,  it  is  the  duty  of  the  jury  to  find  him  guilty.  United  States 
v.  Long,  30  Fed.  Rep.  67S. 

§  404.  .Other  Forgeries  may  be  Shown. — For  the  purpose 
of  showing  the  prisoner's  guilty  knowledge  in  such  cases  it  has 
always  been  held  competent  to  prove  other  forgeries.  Mayer  v. 
People,  SO  N".  Y.  364;  People  v.  Shulman,  80  N.  Y.  373, 
note.  "Such  proof  is  not  received  for  the  purpose  of  show- 
ing other  crimes  than  that  charged  in  the  indictment,  but 
for  the  purpose  of  showing  the  guilty  knowledge  and  intent 
which  are  elements  of  the  crime  charged,  and  it  can  be  con- 
sidered by  the  jury  only  for  that  purpose.  Although  the  evi- 
dence of  Gaylord,  corroborated  as  it  was,  as  to  the  guilty  knowl- 
edge of  the  defendant,  was  quite  clear  and  convincing,  yet  the 
people  are  not  bound  to  rest  upon  a  prima  facie  case,  but  have  the 
right  to  confirm  that  evidence  by  the  proof  as  to  the  uttering  oi 
other  forged  checks."     People  v.  Ewrhardt,  1"1  N.  Y.  591. 

It  is  quite  obvious  that  a  person  may  have  in  his  possession  one 
forged  pieee  of  paper  without  being  neccessarily  chargeable  with 
information  as  to  its  character,  hut  if  possession  of  several  other 
pieces  of  forged  paper  can  be  shown,  the  presumption  of  innocence 
diminishes.      Hence  other  forgeries  can  he  shown,  as  well  as  the 


780  LAW    OF    EVIDENCE    IN    CRIMINAL    CASES. 

possession  of  other  forged  documents.  Lindsey  v.  State,  38  Ohio 
St.  507;  State  v.  McAllister,  94  Me.  139;  Francis  v.  State,  7  Tex. 
App.  501;  Smith  v.  State,  29  Fla.  408;  Carver  v.  People,  39  Mich. 
786;  Coin.  v.  Russell,  156  Mass.  196;  State  v.  Fisher,  65  Mo.  437; 
People  v.  Farrell,  30  Cal.  316;  Taylor,  Ev.  §  322. 

Evidence  may  be  given  upon  an  indictment  for  passing  coun- 
terfeit money  to  establish  the  passing  of  other  bills  of  a  similar 
character,  for  the  purpose  of  showing  the  intent  of  the  defendant 
in  reference  to  the  passing  of  the  bill  for  which  he  is  upon  trial. 
So,  also,  where  guilty  knowledge  is  an  ingredient  of  the  offense, 
evidence  may  be  given  of  the  commission  of  other  acts  of  a  like 
character  where  they  are  necessarily  connected  with  that  which  is 
the  subject  of  the  prosecution,  either  by  some  connection  of  time 
or  place,  or  as  furnishing  a  clue  to  the  motive  on  the  part  of  the 
accused,  as  in  the  case  of  receiving  stolen  goods,  knowing  them  to 
be  such.     Coleman  v.  People,  58  N.  Y.  555. 

§  495.  What  State  must  Show  in  Case  of  Bill,  Note, 
Check,  etc. — "Where  a  bill,  note,  check,  etc.,  is  the  subject  of  a 
forgery  it  must  be  shown  by  the  prosecution  that  the  instrument 
was  not  signed  by  the  person  by  whom  it  purports  to  be  signed 
or  that  such  person  did  not  exist  at  the  time,  or  in  other  words  is 
a  fictitious  person.  And  it  further  appears  that  the  law  will  re- 
fuse to  recognize  a  man's  intentions  as  a  crime,  however  corrupt 
and  criminal  those  intentions  may  be.  His  intentions  simply 
form  the  light  by  which  we  read  and  weigh  his  acts.  People  v. 
Elliott,  90  Cal.  586. 

§  496.  Evidence  of  Handwriting. — Before  a  writing  can  be 
u.-ed  as  a  standard  of  comparison  of  writing  it  must  be  proved 
that  the  specimen  offered  as  a  standard  is  the  genuine  handwrit- 
ing of  the  party  sought  to  be  charged,  and  this  question  of  its- 
admissibility  is  to  be  determined  by  the  judge  presiding  at  the 
trial.  So  far  as  his  decision  is  of  a  question  of  fact  merely,  it  is 
final,  if  there  is  proper  evidence  to  support  it;  and  exceptions  to 
its  admission  as  a  standard  will  not  be  sustained  unless  it  clearly 
appears  that  there  was  some  erroneous  application  of  the  princi- 
ples of  law  to  the  facts  of  the  case,  or  that  the  evidence  was  ad- 
mitted without  proper  proof  of  the  qualifications  requisite  for  its 
competency.     Com.  v.  Coe,  115  Mass.  4S1. 

The  same  question  has  very  recently  been  before  the  court  in 
Vermont  in  the  case  of  Powell  v.  Fuller,  5  New  Eng.  Rep.  217, 
59  Vt.  688,  where  the  court,  reviewing  the  decisions  there,  says 


FORGERY.  781 

that  the  question  has  not  before  been  authoritatively  decided  in 
that  state,  and  lays  down  this  rule :  That  when  a  writing  is  dis- 
puted, and  another  is  offered  in  proof  as  a  standard,  the  court 
should  first  find,  as  a  fact,  that  the  latter  is  genuine,  and  then 
submit  it  to  the  jury  in  comparison  with  that  in  controversy. 

The  doctrine  as  enunciated  in  Cam.  v.  Coe,  115  Mass.  481, 
which  is  the  same  as  that  so  recently  settled  in  Vermont,  has 
since  been  reaffirmed  in  Costello  v.  Crowell,  133  Mass.  352,  and 
again  in  Costelo  v.  Crowell,  139  Mass.  590. 

The  rule  in  England  is  now  the  same  as  in  Massachusetts  and 
Vermont.  For  centuries,  however,  it  was  otherwise,  and  the 
English  courts  denied  the  admissibility  of  such  testimony  alto- 
gether, until  ls.")4,  when  Parliament,  by  IT  &  18  Vict.  chap.  125, 
passed  what  is  known  as  "The  Common  Law  Procedure  Act," 
which  provides  that  "comparison  of  a  disputed  writing  with  any 
writing  proved  to  the  satisfaction  of  the  judge  to  be  genuine  shall 
be  permitted  to  be  made  by  witnesses;  and  such  writings,  and  the 
evidence  of  witnesses  respecting  the  same,  may  be  submitted  to 
the  court  and  jury  as  evidence  of  the  genuineness  or  otherwise, 
of  the  writing  in  dispute."  Under  this  rule,  when  any  writing  is 
proved  to  be  genuine  to  the  satisfaction  of  the  presiding  judge,  it 
shall  be  admitted  as  a  standard  of  comparison.  By  the  English 
rule,  under  this  statute,  the  jury  need  not  consider  or  inquire  into 
the  genuineness  of  the  writing  introduced  for  the  purpose  of 
comparison,  as  the  statute  obviates  the  necessity  of  any  such  in- 
quiry, and  makes  the  finding  of  the  judge  conclusive  on  that 
point.  In  the  light  of  the  authorities,  however,  there  are  courts 
of  high  standing  and  for  whose  decisions  we  have  great  respect, 
which  have  adopted  a  different  rule,  and  which  hold  that  the  jury 
should  ultimately  pass  upon  the  question.  Such  is  the  rule  in 
Xew  Hampshire,  where,  as  it  is  well  understood,  the  doctrine  of 
proof  of  handwriting  by  comparison  has  always  clung  more  ten- 
aciously to  the  conservative  English  common  law  rule  than  ever 
appeared  satisfactory  to  the  courts  of  Maine,  Massachusetts,  Con- 
necticut, Vermont,   and  some   of  the   other  states. 

A  witness  to  handwriting  cannot  be  asked  on  cross-examination 
his  opinion  as  to  a  document  not  relevant  to  the  issue,  and  not 
already  received  as  a  standard  of  comparison  for  the  purpose  of 
contradicting  his  answers.  Van  Wyck  v.  Mcintosh,  11  N.  Y. 
439;  Bank  of  Commonwealth  v.   Mudgett,  44  N.  Y.   514,523; 


782  LAW    OF    EVIDENCE    IN    CRIMINAL    CASES. 

United  States  v.  Chamberlain,  12  Blatchf.  390;  Rose  v.  First 
Nat  Bank  of  Springfield,  91  Mo.  399,  60  Am.  Rep.  258.  Here 
issue  being  whether  a  check  was  forged,  the  court,  over  objection, 
permitted  to  he  presented  to  the  bank  cashier  upon  cross-exami- 
nation, two  checks  upon  which  were  written  the  alleged  forged 
name;  and  subsequently  a  witness  in  rebuttal  testified  that  he  had 
written  the  name  at  the  trial.  Held,  reversible  error,  as  the  rule 
which  excludes  comparison  with  extrinsic  papers  and  signatures, 
is  substantially  the  same  in  direct  and  cross-examination.  Tyler 
v.  Todd,  3G  Conn.  218,  citing  Bacon  v.  Williams,  13  Gray,  525,. 
to  the  same  effect.     Abbott,  Trial  Brief,  §  429. 

When  handwriting  is  to  be  proved  by  comparison,  the  standard 
used  for  the  purpose  must  he  the  genuine  and  original  writing,  and 
must  first  be  established  by  clear  and  undoubted  proof.     Impres- 

Note. — While  the  defendants  were  putting  in  their  evidence  upon  the  trial, 
and  for  the  purpose  of  having  a  larger  number  of  Mary  A.  Suiter's  genuine 
signatures  in  evidence  for  comparison  with  the  alleged  forged  signatures,  she 
produced  a  signature  which  she  said  she  had  written  two  years  before;  and  the 
defendants'  counsel  offered  to  put  it  in  evidence.  Plaintiff's  counsel  objected 
to  it  as  incompetent,  immaterial  and  improper,  and  on  the  further  ground  that 
it  was  written  with  a  pencil.  The  trial  judge  then  remarked:  "I  don't  think 
the  signature  of  a  party  written  on  a  loose  scrap  of  paper  at  some  time  or 
another  should  be  put  in  evidence.  I  will  sustain  that  objection.  It  would  be 
a  dangerous  rule  to  adopt.  I  will  sustain  the  objection  on  that  particular  piece 
of  paper."  The  same  witness  then  produced  two  of  her  signatures  written,  one 
fourteen  and  the  other  twelve  or  thirteen  years  before  the  trial,  and  testified 
that  she  had  written  them  at  the  times  mentioned;  and  defendants'  counsel 
offered  to  put  them  in  evidence  for  the  purpose  of  comparison.  Plaintiff's 
counsel  objected  to  them  on  the  same  grounds  as  before,  and  the  trial  judge 
said:  "I  will  exclude  the  evidence  and  give  you  an  exception.  I  don't 
think  this  evidence  is  either  admissible  or  safe."  It  will  be  observed  that 
these  three  signatures  were  not  excluded  upon  the  ground  that  they  were  not 
sufficiently  proved,  or  that  the  judge  was  not  satisfied  that  they  were  not 
genuine.  We  agree  with  the  general  term  that  these  signatures  should  have 
been  received  in  evidence  for  comparison.  They  would  have  given  to  the  ex- 
pert witnesses  a  wider  range  for  comparison.  As  it  was,  the  only  signatures 
they  had  for  comparison  with  the  alleged  forged  signatures  were  the  signatures 
of  Mary  A.  Suiter  to  her  affidavit  upon  the  answer,  and  the  signature  of  Ann 
Suiter  to  her  affidavit  upon  her  answer  in  this  action,  which  was  written  by 
Mary  A.  Suiter.  So  that  there  was  in  evidence  for  comparison  only  one  signature 
of  the  name  of  Mary  A.  Suiter,  with  which  the  experts  could  compare  the  alleged 
forged  signature.  We  think  the  range  of  comparison  was  altogether  too  nar- 
rowly limited,  and  that  it  could  not  be  thus  arbitrarily  confined.  It  cannot  be 
said  that  the  exclusion  of  this  evidence  was  harmless.  Mutual  L.  Ins.  Co.  of 
New  York  v.  Suiter,  131  N.  Y.  557. 


FORGERY.  7S& 

sions  of  writings  taken  by  means  of  a  press,  and  duplicates  made 
by  a  copying  machine  are  not  original,  and  cannot  be  used  as 
standards  of  comparison.  Corn.  v.  Eastman,  1  Cush.  189,  48  Am. 
Dec.  596. 

The  rule  as  to  comparison  of  handwriting  does  not  apply  to  the 
court  or  the  jury,  who  may  compare  the  two  documents  together,, 
when  they  are  properly  in  evidence,  and  from  that  comparison 
form  a  judgment  upon  the  genuineness  of  the  handwriting. 
Griffith  v.  Williams,  1  (.'romp.  &  J.  47. 

But  the  document  with  which  the  comparison  is  made  must  be- 
one  already  in  evidence  in  the  case,  and  not  produced  merely  for 
the  purpose  of  the  comparison.  Thus,  where  upon  an  indictment 
for  sending  a  threatening  letter,  in  order  to  prove  the  handwrit- 
ing to  it,  it  was  proposed  to  put  in  a  document  undoubtedly 
written  by  the  prisoner,  but  unconnected  with  the  charge,  in 
order  that  the  jury  might  compare  the  writing  with  that  of  the* 
letter,  Holland,  B..  after  considering  Griffith  v.  Williams,  rejected 
the  evidence,  observing,  that  to  say  that  a  party  might  select  and 
put  in  evidence  particular  letters,  bearing  a  certain  degree  of 
resemblance  or  dissimilarity  to  the  writing  in  question,  was  a 
different  thing  from  allowing  a  jury  to  form  a  conclusion  from 
inspecting  a  document  put  in  for  another  purpose,  and  therefore 
free  from  the  suspicion  of  having  been  so  selected.  Morgan's 
Case,  1  Mood.  &  R.  134. 

In  order  to  prove  that  the  prisoner  was  guilty  of  counterfeiting 
it  is  not  necessary  to  show  that  he  was  detected  in  the  act.  but 
presumptive  evidence,  as  in  other  cases,  will  be  sufficient,  viz  : 
that  false  coin  was  found  in  his  possession,  and  that  there  were 
coining  tools  discovered  in  his  house,  etc.  But  the  evidence  must 
be  such  as  to  lead  to  a  plain  implication  of  guilt.  Two  women. 
were  indicted  for  coloring  a  shilling  and  a  sixpence,  and  the  third 
prisoner,  a  man,  for  counseling  them,  etc.  It  appeared  that  he 
had  visited  them  once  or  twice  a  week;  that  the  rattling  of  copper 
money  had  been  heard  whilst  he  was  with  them:  that  on  one 
occasion  he  was  seen  counting  something  after  he  came  out;  that 
he  resisted  being  stopped,  and  jumped  over  a  wall  to  escape;  and 
there  was  foil  ml  upon  him  a  bad  three  shilling  piece,  five  bad 
shillings  and  five  bad  sixpences.  Upon  a  case  reserved,  the  judge 
thought  this  evidence  too  slight  to  support  a  CQnviction.  Isaac's 
Case,  cited  in  1  Russ.  Crimes  (Greave's  ed.)  61. 


734  LAW    OF    EVIDENCE    IN    CRIMINAL    CASES. 

§497.  Direct  Evidence  Seldom  Required. — "It  is  seldom 
that  direct  evidence  can  be  given  ot  the  fact  of  forgery.  In  the 
case  of  negotiable  securities,  the  evidence  is  usually  applied  to 
the  uttering  rather  than  to  the  forging,  although  both  are  usually 
charged.  Where  the  instrument  is  not  of  a  negotiable  nature,  as 
in  the  case  of  a  bond  or  will,  after  proof  that  the  instrument  has 
been  forged  by  someone,  a  strong  presumption  necessarily  arises 
against  the  party  in  whose  favor  the  forgery  is  made,  or  who  has 
the  possession  of  it,  and  seeks  to  derive  benefit  from  it.  Evidence 
that  the  forged  instrument  is  in  the  handwriting  of  the  prisoner, 
must,  if  unexplained,  necessarily  be  strong  evidence  of  his  guilt." 
2  Stark.  Ev.  (2d  ed.)  460. 

§  49S.  New  York  Code  Provisions. — "A  person  is  guilty  of 
forgery  in  the  first  degree  who  with  intent  to  defraud,  forges, 

"  1.  A  will  or  codicil  of  real  or  personal  property,  or  the  attesta- 
tion thereof,  or  a  deed  or  other  instrument,  being  or  purporting 
to  be  the  act  of  another,  by  which  any  right  or  interest  in  prop- 
erty is  or  purports  to  be  transferred,  conveyed,  or  in  any  way 
charged  or  affected;  or, 

"2.  A  certificate  of  the  acknowledgment  or  proof  of  a  will, 
codicil,  deed,  or  other  instrument,  which  by  law  may  be  recorded 
or  given  in  evidence  when  duly  proved  or  acknowledged,  made 
or  purporting  to  have  been  made  by  a  court  or  officer  duly  au- 
thorized to  make  such  a  certificate;  or, 

"  3.  A  certificate,  bond,  paper,  writing,  or  other  public  security, 
issued  or  purporting  to  have  been  issued  by  or  under  the  authority 
of  this  state,  or  of  the  United  States,  or  of  any  other  state  or 
territory  of  the  United  States,  or  of  any  foreign  government, 
country  or  state,  or  by  any  officer  thereof  in  his  official  capacity, 
by  which  the  payment  of  money  is  promised  absolutely  or  upon 
any  contingency,  or  the  receipt  of  any  money  or  property  is 
acknowledged,  or  being  or  purporting  to  be  evidence  of  any  debt 
or  liability,  either  absolute  or  contingent,  issued  or  purporting  to 
have  been  issued  by  lawful  authority;  or, 

'•  4.  An  indorsement  or  other  instrument,  transferring  or  pur- 
porting to  transfer  the  right  or  interest  of  any  holder  of  such  a 
certificate,  obligation,  public  security,  evidence  of  debt  or  liability, 
or  of  any  person  entitled  to  such  right  or  interest;  or, 

"  5.  A  certificate  of  stock,  bond  or  other  writing,  bank-note,  bill 
of  exchange,  draft,  check,  certificate  of  deposit,  or  other  obliga- 


FORGERY.  785 

tion  or  evidence  of  debt,  issued  or  purporting  to  be  issued,  by  any 
bank,  banking  association  or  body  corporate  existing  under  the 
laws  of  this  state,  or  of  the  United  States,  or  of  any  other  state, 
government  or  country,  declaring  or  purporting  to  declare  any 
right,  title  or  interest  of  any  person  in  any  portion  of  the  capital 
stock,  or  property  of  such  a  body  corporate,  or  promising  or  pur- 
porting to  promise  or  agree  to  the  payment  of  money,  or  the  per- 
formance of  any  act.  duty  or  obligation;  or, 

"  6.  An  indorsement  or  other  writing,  transferring  or  purporting 
to  transfer  the  right  or  interest  of  any  holder  of  such  a  certificate, 
bond,  or  writing  obligatory,  or  of  any  person  entitled  to  such 
right  or  interest."     N.  Y.  Penal  Code,  §  509. 

"  A  person  is  guilty  of  forgery  in  the  second  degree  who,  with 
intent  to  defraud, 

"  1.  Forges  the  great  or  private  seal  of  this  state,  the  seal  of  any 
court  of  record,  or  of  any  public  office  or  officer  authorized  by 
law,  or  of  any  body  corporate  created  by  or  existing  under  the 
laws  of  this  state,  or  of  the  United  States,  or  of  any  other  state 
or  territory  of  the  United  States,  or  of  any  other  state,  govern- 
ment or  country,  or  any  impression  of  such  a  seal;  or  any  gold  or 
silver  coin,  whether  of  the  United  States  or  of  any  foreign  state 
government  or  country;  or, 

"2.  Forges  a  record  of  a  will,  conveyance,  or  instrument  of  any 
kind,  the  record  of  which  is  by  the  law  of  this  state  made  evi- 
dence, or  of  any  judgment,  order,  or  decree  of  any  court  or 
officer,  or  a  certificate  or  authenticated  copy  thereof;  or, 

"A  judgment  roll,  judgment,  order,  or  decree  of  any  court  or 
officer,  or  an  enrollment  thereof,  or  a  certified  or  authenticated 
copy  thereof,  or  any  document  or  writing  purporting  to  be  such 
judgment,  order,  decree,  enrollment,  or  copy;  or, 

"An  entry  made  in  any  book  of  record  or  accounts,  kept  by  or 
in  the  office  of  any  officer  of  this  state,  or  of  any  village,  city, 
town,  or  county  of  the  state,  by  which  any  demand,  claim,  obliga- 
tion, or  interest,  in  favor  of  or  against  the  people  of  the  state,  or 
any  city,  village,  town  or  county,  or  any  officer  thereof,is  or  pur- 
ports to  be  created,  increased,  diminished,  discharged,  or'  in  any 
maimer  affected;  or  an  entry  made  in  any  hook  of  records  or 
accounts  kept  by  a  corporation  doing  business  within  the  state,  or 
in  any  account  kept  by  such  a  corporation,  whereby  any  pecuniary 
obligation,  claim,  or  credit  is  or  purports  to  be  created,  increased, 
diminished,  discharged,  or  in  any  manner  affected;  or, 
50 


786  LAW    OF    EVIDENCE    IN   CRIMINAL   CASES. 

"An  instrument,  document,  or  writing,  being  or  purporting  to 
be,  a  process  or  mandate  issued  by  a  competent  court,  magistrate, 
or  officer  of  the  state,  or  the  return  of  an  officer,  court  or  tribunal, 
to  such  a  process  or  mandate;  or  a  bond,  recognizance,  undertak- 
ing, pleading,  or  proceeding,  filed  or  entered  in  any  court  of  the 
state,  or  a  certificate,  order  or  allowance  by  a  competent  court,  or 
officer,  or  a  license  or  authority  granted  pursuant  to  any  statute 
of  the  state  or  a  certificate,  document,  instrument,  or  writing, 
made  evidence  by  any  law  or  statute;  or, 

"An  instrument  or  writing,  being  or  purporting  to  be  the  act,  of 
another,  by  which  a  pecuniary  demand  or  obligation  is  or  purports 
to  be  or  to  have  been  created,  increased,  discharged,  or  diminished, 
or  in  any  manner  affected,  or  by  which  any  rights  or  property 
whatever  are  or  purport  to  be  or  to  have  been  created,  transferred, 
conveyed,  discharged,  increased,  or  diminished,  or  in  any  manner 
affected,  the  punishment  for  forging,  altering,  or  counterfeiting 
which  is  not  hereinbefore  prescribed,  by  which  false  making, 
forging,  altering,  or  counterfeiting,  any  person  may  be  bound, 
affected  or  in  any  way  injured  in  his  person  or  property;  or, 

"  3.  Makes  or  engraves  a  plate  in  the  form  or  similitude  of  a. 
promissory  note,  bill  of  exchange,  bank  note,  draft,  cheque,  cer- 
tificate of  deposit,  or  other  evidence  of  debt,  issued  by  a  banker, 
or  by  any  banking  corporation  or  association,  incorporated  or 
carrying  on  business  under  the  laws  of  the  state,  or  of  the  United 
States,  or  of  any  other  state  or  territory  of  the  United  States,  or 
of  any  foreign  government,  or  country,  without  the  authority  of 
such  banker,  or  banking  corporation  or  association;  or, 

"Without  like  authority,  has  in  his  possession  or  custody  such  a, 
plate,  with  intent  to  use,  or  permit  the  same  to  be  used,  for  the 
purpose  of  taking  therefrom  any  impression  to  be  uttered;  or, 

"  Without  like  authority,  has  in  his  possession  or  custody  any 
impression  taken  from  such  a  plate,  with  intent  to  have  the  same 
filled  up  and  completed  for  the  purpose  of  being  uttered;  or, 

"  Makes  or  engraves,  or  causes  to  be  made  or  engraved,  upon  any 
plate,  any  figures  or  words,  with  intent  that  the  same  may  be  used 
for  the  purpose  of  falsely  altering  any  evidence  of  debt  herein- 
before mentioned."     N.  Y.  Penal  Code,  §  511. 

"An  instrument  partly  written  and  partly  printed,  or  wholly 
printed  with  a  written  signature  thereto,  and  any  signature  or 
writing  purporting  to  be  a  signature  of,  or  intended  to  bind  an 


FORGERY.  787 

individual,  a  partnership,  a  corporation  or  association,  or  an 
officer  thereof,  is  a  written  instrument  or  a  writing,  within  the 
provisions  of  this  chapter.     N.  Y.  Penal  Code,  §  513. 

"A  person,  who,  with  intent  to  defraud  or  conceal  any  larceny 
or  misappropriation  by  any  person  or  any  money  or  property,, 
either, 

"  1.  Alters,  erases,  obliterates,  or  destroys  an  account,  book  of 
account,  record,  or  writing,  belonging  to,  or  appertaining  to  the 
business  of,  a  corporation,  association,  public  office  or  officer,, 
partnership,  or  individual;  or, 

"2.  Makes  a  false  entry  in  any  such  account  or  book  of  ac- 
counts; or, 

"  3.  Willfully  omits  to  make  true  entry  of  any  material  particu- 
lar in  any  such  account  or  book  of  accounts,  made,  written,  or  kept 
by  him  or  under  his  direction; 

"  Is  guilty  of  forgery  in  the  third  degree."  ]ST.  Y.  Penal  Code, 
§515. 


CHAPTER  LVI. 

PERJURY. 

§  490.   Term  Defined. 

500.  Two  Witnesses  Required  to  Prove. 

501.  One  Witness  Insufficient. 

502.  Proof  Required  that  Defendant  was  on  Oath. 

503.  Impeaching  Evidence  always  Competent. 

504.  Testimony  of  an  Accomplice  Received  icith  Suspicion. 

505.  Authorities  Considered. 

§  499.  Term  Defined. — This  offense  at  common  law  is  defined 
to  be  a  willful  false  oath,  by  one  who  being  lawfully  required  to 
depose  the  truth  in  any  judicial  proceedings,  swears  absolutely  in 
a  matter  material  to  the  point  in  question,  whether  he  be  believed 
or  not. 

If  we  analyze  this  definition  we  will  find,  1st.  That  the  oath 
must  be  willful.  2d.  That  it  must  be  false.  3d.  That  the 
party  was  lawfully  sworn.  4th.  That  the  property  was  judicial. 
5th.  That  the  assertion  was  absolute.  6th.  That  the  falsehood 
was  material  to  the  point  in  question. 

The  intention  must  be  willful.  Tne  oath  must  be  taken 
and  falsehood  asserted  with  deliberation,  and  a  consciousness  of 
the  nature  of  the  statement  made;  for  if  it  has  arisen  in  conse- 
quence of  inadvertency,  surprise  or  mistake  of  the  import  of  the 
question,  there  was  no  corrupt  motive  (1  Hawk,  P.  C.  chap.  69, 
§  2);  but  one  who  swears  willfully  and  deliberately  to  a  matter 
which  he  rashly  believes,  which  is  false,  and  which  he  had  no 
probable  cause  for  believing,  is  guilty  of  perjury.  Com.  v.  Cor- 
nish,  6  Binn.  249.  See  United  States  v.  Shellmire,  1  Baldw.  370; 
State  v.  Cochran,  1  Bail.  L.  50. 

The  oath  must  be  false.  The  party  must  believe  that 
what  he  is  swearing  is  fictitious;  for,  if  intending  to  deceive,  he 
asserts  that  which  may  happen  to  be  true,  without  any  knowledge 
of  the  fact,  he  is  equally  criminal,  and  the  accidental  truth  of  his 
evidence  will  not  excuse  him.  3  Coke,  Inst.  166;  1  Hawk,  P.  C. 
chap.  69,  §  6. 

The  party  must  be  lawfully   sworn.     The    person  by  whom 


PERJURY.  789 

the  oatli  is  administered  must  have  competent  authority  to 
receive  it;  an  oath,  therefore,  taken  before  a  private  person,  or 
before  an  officer  having  no  jurisdiction,  will  not  amount  to  per- 
jury. 3  Coke,  Inst.  166;  Jackson  v.  Humphrey,  1  Johns.  498; 
Bulloch  v.  Koon,  9  Cow.  30;  State  v.  MeCroskey,  3  McCord,  L. 
308;  State  v.  Stephenson,  4  McCord,  L.  165;  Bex  v.  Hanks,  3 
Car.  &  P.  419;  State  v.  Alexander,  11  N".  C.  182;  State  v.  Hay- 
ward,  1  Nott  &  McC.  L.  546;  State  v.  Wyatt,  3  K  C.  56;  Com. 
v.  White,  8  Pick.  453;  2  Eussell,  Crimes,  520;  2  Chitty,  Crim.  L. 
304. 

The  proceedings  must  be  judicial.  Proceedings  before  those 
who  are  in  any  way  entrusted  with  the  administration  of 
justice,  in  respect  of  any  matter  regularly  before  them,  are  con- 
sidered as  judicial  for  this  purpose.  2  Chitty,  Crim.  L.  303;  2 
Russell,  Crimes,  51S;  1  Hawk,  P.  C.  chap.  69,  §  3.  Vide  Res- 
publica  v.  Newell,  3  Yeates,  414;  United  States  v.  Bailey,  34  U. 
S.  9  Pet.  238, 9  L.  ed.  113.  Perjury  cannot  therefore  be  committed 
in  a  case  of  which  the  court  had  no  jurisdiction.  State  v.  Alexan- 
der, State  v.  Wyatt,  State  v.  MeCroskey,  Com.  v.  White  and  State 
v.  Hay  ward,  supra. 

The  assertion  must  be  absolute.  If  a  man,  however,  swears 
that  he  believes  that  to  be  true  which  he  knows  to  be  false  it  will 
be  perjury.  2  Russell,  Crimes,  518;  Millers  Case,  3  Wils.  427, 
2  W.  Bl.  881;  Pedlefs  Case,  1  Leach,  C.  L.  242;  Com.  v.  Cornish, 
6  Binn.  249;  Gilbert,  Ev.  (Lofft's  ed.)  602. 

The  oath  must  be  material  to  the  question  depending. 
Where  the  facts  sworn  to  are  wholly  foreign  from  the  purpose 
and  altogether  immaterial  to  the  mutter  in  question,  the  oath  does 
not  amount  to  a  legal  perjury.  Chapham  v.  White,  8  Ves.  Jr.  35; 
Larston's  Case,  2  Rolle,  41,42,  369;  2  Russell,  Crimes,  521;  3 
Coke,  Inst.  167;  1  Hawk,  P.  C.  chap.  69,  §  8;  Bac.  Abr.  title  Per- 
jury ^  a;  State  v.  Hathaway,  2  Nott.  &  McC.  L.  IIS.  Nor  can 
perjury  be  assigned  upon  the  valuation  under  oath,  of  a  jewel  or 
other  thing,  the  value  of  which  consists  in  estimation.  Leaking 
v.  Clissel,  Sid.  146,  1  Keb.  510. 

It  is  not  within  the  plan  of  this  work  to  cite  all  the  statutes 
passed  by  the  general  government,  or  the.  several  states  on  the  sub- 
ject of  perjury,  ltis  proper,  however,  here  to  transcribe  a  part  of 
the  13th  section  of  the  Act  of  Congress.  >f  March  3,  L825,4  Stat,  at  L. 
118,  which  provides  as  follows  :  "If  any  person  in  any  case,  matter, 


790  LAW    OF    EVIDENCE    IN    CRIMINAL    CASES. 

hearing,  or  other  proceeding,  when  an  oath  or  affirmation  shall  be 
required  to  be  taken  or  administered  under  or  by  any  law  or  laws 
of  the  United  States,  shall,  upon  the  taking  of  such  oath  or 
affirmation,  knowingly  and  willingly  swear  or  affirm  falsely,  every 
person,  so  offending,  shall  be  deemed  guilty  of  perjury,  and  shall 
on  conviction  thereof,  be  punished  by  tine,  not  exceeding  two 
thousand  dollars,  and  by  imprisonment  and  confinement  to  hard 
labor,  not  exceeding  five  years,  according  to  the  aggravation  of 
the  offense.  And  if  any  person  or  persons  shall  knowingly  or 
willingly  procure  any  such  perjury  to  be  committed,  every  person 
so  offending  shall  be  deemed  guilty  of  subornation  of  perjury,  and 
shall  on  conviction  thereof,  be  punished  by  fine  not  exceeding 
two  thousand  dollars,  and  by  imprisonment  and  confinement  to 
hard  labor,  not  exceeding  five  years,  according  to  the  aggravation 
of  the  offense." 

10.  In  general  it  may  be  observed  that  a  perjury  is  committed 
as  well  by  making  a  false  affirmation,  as  a  false  oath.  Vide  gen- 
erally, 16  Vin.  Abr.  307;  Bac.  Abr.  h.  t.;  Com.  Dig.  title  Justices 
of  Peace,  B.  102-106;  4  Bl.  Com.  137,  13S;  3  Coke,  Inst.  163- 
168;  1  Hawk,  P.  C.  chap.  60;  2  Russell,  Crimes,  book  V.  chap.  1;  2 
Chitty,  Crim.  L.  chap.  0;  Poscoe,  Crim.  Ev.  h.  t.;  Burn's  J.,  h.  t.; 
Williams'  J.,  h.  t. 

"  Perjury  is  an  assertion  upon  an  oath  duly  administered  in  a 
judicial  proceeding,  before  a  competent  court,  of  the  truth  of 
some  matter  of  fact,  material  to  the  question  depending  in  that 
proceeding,  which  assertion  the  asserter  does  not  believe  to  be 
true  when  he  makes  it,  or  on  which  he  knows  himself  to  be  igno- 
rant. In  this  definition,  the  word  "oath"  includes  every  affirma- 
tion which  any  class  of  persons  are  by  law  permitted  to  make  in 
place  of  an  oath.  The  expression  "duly  administered"  means  ad- 
ministered in  a  form  binding  on  his  conscience,  to  a  witness  legally 
called  before  them,  by  any  court,  judge,  justice,  officer,  commis- 
sioner, arbitrator,  or  other  person  who,  by  the  law  for  the  time 
being  in  force,  or  by  consent  of  the  parties,  has  authority  to  hear, 
receive,  and  examine  evidence.  The  fact  that  a  person  takes  an 
oath  in  any  particular  form  is  a  binding  admission  that  he  regards 
it  as  binding  on  his  conscience.  The  expression  "judicial  proceed- 
ing" means  a  proceeding  which  takes  place  in  or  under  the 
authority  of  any  court  of  justice,  or  which  relates  in  any  way  to 
the  administration  of  justice,  or  which  legally  ascertains  any  right, 


PERJURY.  791 

or  liability.  The  word  '  fact '  includes  the  fact  that  the  witness 
holds  any  opinion  or  belief.  The  word  '  material '  means  of  such 
a,  nature  as  to  affect  in  any  way,  directly  or  indirectly,  the  proba- 
bility of  anything  to  be  determined  by  the  proceeding,  or  the 
credit  of  any  witness,  and  a  fact  may  be  material,  although  evi- 
dence of  its  existence  was  improperly  admitted."  Stephen,  Dig. 
Crim.  L.  art.  135. 

§  500.  Two  Witnesses  Required  to  Prove. — The  Texas 
Criminal  Code,  art.  710,  accurately  states  the  modern  rule  which 
evidently  clings  to  the  views  of  the  old  text-writers  as  modified, 
and  holds  that  if  the  perjury  is  not  confessed  in  open  court  the 
falsity  of  the  statement  assigned  for  perjury  must  be  proved  by 
the  positive,  direct  testimony  of  two  witnesses,  or  by  the  direct, 
positive  testimony  of  one  witness  corroborated  strongly  by  other 
evidence  (evidently  circumstantial). 

Now  there  may  be  evidence  technically  circumstantial  which 
would  be  amply  sufficient  to  establish  perjury.  Let  us  illustrate : 
B  is  on  trial  for  the  murder  of  A.  C  swears  that  he  was  at  a 
certain  time  at  a  certain  place  in  Travis  county,  Texas;  that  B  and 
A  were  present  at  that  time  and  place,  and  that  no  other  person 
was  present;  that  he  saw  B  shoot  and  kill  A,  giving  the  circum- 
stances. B  is  convicted  and  executed.  Subsequent  facts  lead  to 
the  conclusion  that  C  perjured  himself,  and  he  is  indicted  for 
that  offense.  Upon  the  trial  it  is  evident  that  the  prosecution  can- 
not adduce  direct  evidence  against  C,  but  by  one  or  more  wit- 
nesses it  can  be  shown  that  he  was,  at  the  time  of  the  homicide, 
and  on  the  day  of  the  homicide  specified  by  him,  in  the  city  of 
New  York.  Technically  speaking,  this  would  be  circumstantial 
evidence,  but  of  such  character  as  to  be  virtually  positive  or  direct 
evidence.  There  would  be  no  room  for  inferences  or  presump- 
tions, for,  if  the  jury  believed  the  witness,  guilt  would  result 
without  any  process  of  reasoning  or  presumptions.  Maines  v. 
State,  26  Tex.  App.  11. 

§  501.  One  Witness  Insufficient.— The  direct  evidence  of  one 
witness,  who  is  entitled  to  full  credit,  is  sufficient  for  proof  of 
any  fact,  except  perjury  and  treason.  In  Com.  v.  Builand,  L19 
Mass.  317,  Mr.  Justice  Morton,  as  the  organ  of  the  court,  said: 
"It  is  not  necessary  that  there  should  be  two  living  witnesses  in 
contradiction  of  the  statement  of  the  defendant  to  justify  a  con- 
viction of  perjury.     It  is  sufficienl  if,   in  addition  to  one  directly 


792  LAW    OF   EVIDENCE   IN    CRIMINAL   CASES. 

opposing  witness,  corroborating  circumstances  sufficient  to  turn  the 
scale  and  overcome  the  oath  of  the  defendant  and  the  legal  pre- 
sumption of  his  innocence  are  proved.  Com.  v.  Parker,  2  Cush. 
212.  And  where  the  defendant's  statement  is  contradicted  by  a  wit- 
ness, who  is  supported  by  corroborating  circumstances,  the  evi- 
dence must  ordinarily  be  submitted,  under  proper  instructions,  to 
the  jury,  whose  province  it  is  to  judge  of  the  weight  of  such  cor- 
roborating circumstances."  See  also  1  Greenl.  Ev.  (13th  ed.) 
§  257,  and  cases  cited;  United  States  v.  Wood,  39  U.  S.  14  Pet. 
430,  10  L.  ed.  527. 

§  502.  Proof  Required  that  Defendant  was  on  Oath. — In 
an  indictment  for  perjury  it  must  be  directly  stated  in  some  form 
of  apt  words  that  the  defendant  was  sworn.  It  is  not  sufficient 
that  it  so  appears  by  inference  or  argument.  1  Whart.  Am.  Crim. 
L.  §  1287;  2  Bishop,  Crim.  Proc.  §912;  State  v.  Dwoll,  44  K H- 
142.  The  indictment  in  this  case  only  alleges  that  the  defendant 
did  "depose  and  swear."  All  that  is  subsequently  said  about 
"said  oath,"  and  the  taking  and  administering  of  the  same,  refers 
to  the  allegation  "did  depose  and  swear,"  and  adds  nothing  to  its 
signification  or  effect.  The  case  in  this  respect  is  nearly  on  all 
fours  with  that  of  United  States  v.  Hearing,  11  Sawy.  521.  In 
that  case  the  defendant  was  indicted  for  perjury  in  making  a  home- 
stead affidavit,  which  was  set  out  in  the  indictment.  This  was 
followed  by  an  allegation  that  the  defendant  did,  before  a  person 
authorized  to  administer  "said  oath,"  depose  and  state  contrary  to 
his  said  oath.  In  sustaining  a  demurrer  to  the  indictment,  the 
court  said  that  after  setting  out  the  affidavit  there  should  have 
been  an  allegation  "that  the  defendant,  being  then  and  there  dulv 
sworn  by  the  clerk,"  etc.,  "did  depose  and  state  that  such  affidavit 
was  true;"  and  that  the  allegation  that  the  defendant  did  depose 
and  state  contrary  to  his  said  oath  is,  if  anything,  an  attempt  to 
assign  perjury  on  a  "said"  or  supposed  oath,  the  administration  of 
which  is  nowhere  alleged.  But  the  fact  that  the  defendant  was 
sworn  must  be  distinctly  stated.  It  is  not  sufficient  that  it  appeal's 
by  implication.      United  States  v.  McConaughy,  33  Fed.  Hep.  168. 

"A  person  who  swears  or  affirms  that  he  will  truly  testify, 
declare,  depose,  or  certify,  or  that  any  testimony,  declaration, 
deposition,  certificate,  affidavit  or  other  writing  by  him  sub- 
scribed, is  true,  in  an  action,  or  a  special  proceeding,  or  upon  any 
hearing,  or  inquiry,  or  on  any  occasion  in  which  an  oath  is  required 


TERJUKY.  793 

by  law,  or  is  necessary  for  the  prosecution  or  defense  of  a  private 
right,  or  for  the  ends  of  public  justice,  or  may  lawfully  be  admin- 
istered, or  who  in  such  action  or  proceeding,  or  on  such  hearing, 
inquiry  or  other  occasion,  willfully  and  knowingly  testifies, 
declares,  deposes,  or  certifies  falsely,  in  any  material  matter,  or 
states  in  his  testimony,  declaration,  deposition,  affidavit  or  certifi- 
cate, any  material  matter  to  be  true  which  he  knows  to  be  false, 
is  guilty  of  perjury."     N.  Y.  Penal  Code,  §  90. 

The  taking  of  a  willful  false  oath  by  one  who,  being  lawfully 
required  to  depose  the  truth  in  any  judicial  proceeding,  swears- 
absolutely  in  a  matter  material  to  the  point  in  question.  Com.  v. 
Smith,  11  Allen,  253. 

§  503.  Impeaching  Evidence  always  Competent. — Judge 
Andrews  in  a  recent  case  has  said:  "Evidence  going  to  the  credit 
of  a  witness  who  has  given  material  evidence  is  relevant,  because 
it  helps  the  jury  in  determining  the  main  issue.  The  recent  cases 
sustain  the  view  that  perjury  may  be  assigned  by  false  testimony 
going  to  the  credit  of  a  witness.  Reg.  v.  Glover,  9  Cox,  C.  C.  501;. 
Reg.  v.  Lavey,  3  Car.  &  K.  26;  Archb.  Crim.  Pr.  &  PI.  817. 
False  swearing  in  respect  to  such  matter  is  not  distinguishable  in 
respect  to  moral  turpitude  from  false  swearing  upon  the  merits; 
and,  we  think,  there  is  no  just  reason  for  refusing  to  treat  false 
swearing  as  perjury  whenever  the  testimony  is  relevant  to  the 
case,  although  it  may  not  directly  bear  upon  the  issue  to  be 
found."     People  v.  Courtney,  94  N.  Y.  190. 

§  501.  Testimony  of  an  Accomplice  Received  with  Suspi- 
cion.— It  is  important  to  remember  that  all  courts  receive  the 
testimony  of  an  accomplice  with  suspicion.  The  evident  infirmi- 
ties of  testimony  given  by  a  consort  in  crime,  very  properly 
impress  it  with  elements  of  extreme  disfavor.  Where  then,  as 
has  frequently  happened,  subsequent  developments  show  that  a 
conviction  was  secured  upon  perjured  testimony  it  becomes  the 
duty  of  the  court,  if  no  action  be  taken  by  the  executive,  to  take 
such  steps  as  shall  bring  to  his  attention  the  facts  which  may  rea- 
sonably lead  to  the  exercise  of  clemency,  the  presiding  judge,  who 
in  the  exercise  of  his  legitimate  functions  has  passed  sentence  upon 
a  fellow  citizen,  under  the  influence  of  perjured  testimony,  should 
cause  such  steps  to  he  taken  upon  the  discovery  of  the  character 
of  the  evidence  upon  which  such  conviction  was  based,  as  will  lead 
to  pardon. 


794  LAW    OF    EVIDENCE    IN    CRIMINAL    CASES. 

These  views  are  fully  sustained  by  a  recent  decision  of  the 
Bupreme  court  of  Colorado.     Klhik  v.  People,  16  Colo.  467. 

§  505.  Authorities  Considered. — Upon  a  trial  for  perjury,  the 
materiality  of  testimony  alleged  to  be  false  is  a  question  of  fact 
for  the  jury,  under  proper  instructions  by  the  court.  2  Bishop, 
Oim.  Proc.  §  935.  An  indictment  for  perjury  must  show  on  its 
face  that  the  oath  assigned  as  perjury  was  willful  and  false,  and 
that  the  alleged  false  statement  was  material  to  the  issue,  or  it 
cannot  be  sustained.  Knobloch,  Crim.  Dig.  345;  State  v.  Gibson, 
26  La.  Ann.  71. 

Perjury  may  consist  not  only  in  false  and  corrupt  testimony  on 
the  main  fact,  but  also  in  such  testimony  on  the  material  circum- 
stances tending  to  prove  the  issue.  Desty,  Am.  Crim.  L.  §  75;  3 
Greenl.  Ev.  (14th  ed.)  §  195. 

The  old  rule  that  to  convict  of  perjury  two  witnesses  were 
necessary,  has  been  relaxed;  and  a  conviction  may  be  had  upon 
any  legal  evidence  of  a  nature  and  amount  sufficient  to  outweigh 
that  upon  which  perjury  is  assigned.  1  Greenl.  Ev.  §§  257-260; 
United  States  v.  Wood,  39  U.  S.  14  Pet.  430,  10  L.  ed.  527:  State 
v.  Herd,  57  Mo.  252,  1  Am.  Crim.  Rep.  502;  Williams  v.  Com. 
91  Pa.  501. 

In  Bey.  v.  Parker,  A,  having  stated  on  an  affidavit  that  he  had 
paid  all  the  debts  proved  under  his  bankruptcy  except  two;  on  an 
indictment  for  perjury  on  this  affidavit,  one  of  the  assignments 
was  that  A  had  not  paid  all  the  debts  proven  except  two;  and 
another  that  certain  other  creditors  were  not  paid  in  full.  In 
support  of  this  affidavit  several  creditors  were  called,  who  each 
proved  the  non-payment  of  his  own  debt.  And  it  was  determined 
that  this  was  not  sufficient  to  warrant  conviction;  that,  as  to  the 
non-payment  of  each  debt,  it  was  necessary  to  have  the  testimony 
of  two  witnesses,  or  of  one  witness  and  some  circumstances  to 
supply  the  place  of  a  second  witness.  1  Car.  &  JVL  639.  In 
Williams  v.  Com.  supra,  the  court,  in  deference  to  1  Greenl.  Ev. 
;i  2.">7,  and  Peg.  v.  Parker,  supra,  says:  "The  explanation  ought 
to  have  been  that  the  commonwealth  is  required  to  prove  by  two 
witnesses,  or  one  witness  and  corroborative  evidence,  at  least  one 
corrupt  payment,  contribution  or  promise  which  the  defendant  is 
charged  with  having  made  or  paid;  and,  though  each  of  several 
such  acts  be  proved  by  a  single  witness,  if  none  be  proved  by  two 
witnesses,  or  by  one  witness  and  corroborative  proof  of  circum- 
stances, there  could  not  be  a  conviction. ,- 


PERJURY.  795 

"The  preponderance  of  contradictory  proof  must  go  to  some 
•one  particular  false  statement.  It  will  not  be  sufficient  to  prove 
by  some  inadequate  line  of  testimony  that  one  statement  made  by 
•the  defendant  is  false,  and  then  by  another  inadequate  line  of  tes- 
timony that  another  statement  made  by  him  is  false."  "VVhart. 
•Grim.  Ev.  §  387. 

These  cases  sufficiently  explain  what  is  meant,  when  it  is  said 
that  where  there  are  several  assignments  of  perjury,  there  must 
be,  in  addition  to  one  witness,  corroborative  evidence  as  to  each. 
Proof  of  any  sufficient  assignment  will  sustain  a  count  containing 
several  assignments  of  perjury.  2  Bishop,  Crim.  Proc.  §  934; 
Com.  v.  Johns,  6  Gray.  274;  Harris  v.  People,  64  K  Y.  148; 
State  v.  RascaU,  6  X.  H.  352. 

"•Where  a  witness  has  given  testimony  material  to  the  issue, 
and  in  answer  to  a  question  as  to  whether  he  had  not  previously 
made  a  statement  different  from  the  testimony  then  given,  he 
denies  having  done  so,  the  answer  affects  his  credibility  as  a  wit- 
ness, and  a  charge  of  perjury  may  be  founded  upon  it."  People 
v.  Barry,  63  Cal.  62,  and  cases  cited.  "It  is  not  necessary  that 
•the  false  statements  should  tend  directly  to  prove  the  issue  in 
order  to  sustain  an  indictment.  If  the  matter  falsely  sworn  to  is 
circumstantially  material  or  tends  to  support  and  give  credit  to 
the  witness  in  respect  to  the  main  fact,  it  is  perjury.  And  it  is 
equally  perjury  if  the  false  testimony  tends  to  discredit  the  wit- 
ness." 2  Bishop,  Crim.  Proc.  ^  934;  Wood  v.  People,  59  N.  Y. 
123;  Marvin  v.  State,  53  Ark.  395. 

It  must  appear  either  from  the  facts  set  forth  in  an  indictment 
for  perjury  that  the  matter  sworn  to  and  upon  which  the  perjury 
is  assigned  was  material  or  it  must  be  expressly  averred,  that  it 
was  material,  and  the  materiality  must  be  proved  on  the  trial  or 
then-  can  be  no  conviction.  A  falsi'  oath  upon  an  immaterial 
matter  will  not  support  a  conviction  of  perjury.  Roscoe,  Crim. 
Ev.  758;  2  Russell,  Crimes,  639. 

The  whole  law  in  reference  to  perjury  is  based  upon  the  idea 
that  when  there  is  witness  against  witness,  oath  against  oath,  there 
must  he  other  evidence  to  satisfy  the  mind.  Schwartz  v.  Com. 
27  Gratt.  L025,  21  Am.  Rep.  365. 

Two  early  English  cases  are  sometimes  cited  as  holding  that  the 
perjury  may  he  established  by  proof  of  the  contradictory  oath 
merely,  without  other  evidence.     One  of  these  is  an  anonymous 


796  LAW    OF    EVIDENCE    IN    CRIMINAL    CASES. 

case  decided  by  Yates,  J.,  at  the  Lancaster  assizes  in  1764,  and 
the  ruling  approved  by  Lord  Mansfield.  The  other  is  the  case  of 
Rex  v.  Knill,  5  Earn.  &  Aid.  929,  note.  It  is  shown  however  in 
2  Russell  on  Crimes,  652,  that  in  each  of  these  cases  there  were 
corroborating  circumstances  in  addition  to  the  contradictory  oath. 
But  if  these  cases  even  go  to  the  extent  which  is  claimed  for 
them,  they  are  overruled  by  the  later  English  decisions.  And  it 
is  now  held  by  those  courts  that  the  defendant's  own  evidence 
upon  oath  is  not  sufficient  of  itself  to  disprove  the  evidence  on 
which  the  perjury  is  assigned. 

In  Reg.  v.  Wheatland',  8  Car.  &  P.  238,  Mr.  Baron  Gurney 
held  that  it  was  not  sufficient  to  prove  that  the  defendant  had,  on 
two  different  occasions,  given  direct  contradictory  evidence,, 
although  he  might  willfully  have  done  so;  but  that  the  jury  must 
be  satisfied,  affirmatively,  that  what  he  swore  at  the  trial  was 
false,  and  that  would  not  be  sufficiently  shown  to  be  false  by  the 
mere  fact  that  the  defendant  had  sworn  contrary  at  another  time;, 
it  might  be  that  his  evidence  at  the  trial  was  true,  and  his  depo- 
sition before  the  magistrate  false.  There  must  be  such  confirma- 
tory evidence  of  the  defendant's  deposition  before  the  magistrate 
as  proved  that  the  evidence  given  by  the  defendant  at  the  trial 
was  false. 

In  Reg.  v.  Hughes,  1  Car.  &  K.  519,  Tindall,  Ch.  J.,  said:  "If 
you  merely  prove  the  two  contradictory  statements  on  oath,  and 
leave  it  there,  non  constat,  which  statement  is  the  true  one."  See 
also  JacksoiCs  Cane,  1  Lew.  C.  C.  270;  Eoscoe,  Crim.  Ev.  767,. 
768. 

In  the  United  States  there  are  but  few  decisions  bearing  upon 
the  question.  The  writers  on  criminal  law,  however,  lay  down 
the  rule  in  conformity  with  the  English  cases.  3  Wharf.  Am. 
Crim.  L.  §  2275;  2  Bishop,  Crim.  L.  §  1005;  1  Greenl.  Ev.  259. 
Schwartz  v.  Com.  27  Gratt.  1025,  21  Am.  Rep.  365. 

"The  principle  that  one  witness  with  corroborating  circumstances 
is  sufficient  to  establish  the  charge  of  perjury,  leads  to  the  conclu- 
sion that  circumstances,  without  any  witness,  when  they  exist  in 
documentary  or  written  testimony,  may  combine  to  the  same 
effect;  as  they  may  combine,  altogether  unaided  by  oral  proof, 
except  the  evidence  of  their  authenticity,  to  prove  any  other  fact, 
connected  with  the  declarations  of  persons  or  the  business  of 
human  life.     The  principle    is,  that   circumstances    necessarily 


PERJURY.  797 

make  a  part  of  the  proofs  of  human  transactions;  that  such  as 
have  been  reduced  to  writing,  in  unequivocal  terms,  when  the 
writing  has  been  proved  to  be  authentic,  cannot  be  made  more 
certain  by  evidence  aliunde,  and  that  such  as  have  not  been  re- 
duced to  writing,  whether  they  relate  to  the  declarations  or  con- 
duct of  men,  can  only  be  proved  by  oral  testimony.  Accordingly, 
it  is  now  held  that  a  living  witness  of  the  corpus  delicti  may  be 
dispensed  with,  and  documentary  or  written  evidence  be  relied 
upon  to  convict  of  perjury, — first,  where  the  falsehood  of  the 
matter  sworn  by  the  prisoner  is  directly  proved  by  documentary 
or  written  evidence  springing  from  himself,  with  circumstances 
showing  the  corrupt  intent;  secondly,  in  cases  where  the  matter 
so  sworn  is  contradicted  by  a  public  record,  proved  to  have  been 
well  known  by  the  prisoner  when  he  took  the  oath, the  oath  only 
being  proved  to  have  been  taken;  and,  thirdly,  in  cases  where  the 
party  is  charged  with  taking  an  oath,  contrary  to  what  he  must 
necessarily  have  known  to  be  true;  the  falsehood  being  shown  by 
his  own  letters  relating  to  the  fact  sworn  to,  or  by  any  other  writ- 
ten testimony  existing  and  being  found  in  his  possession,  and  which 
have  been  treated  by  him  as  containing  the  evidence  of  the  fact 
recited  in  it.  If  the  evidence  adduced  in  proof  of  the  crime  of 
perjury  consists  of  two  opposing  statements  of  the  prisoner,  and 
nothing  more,  he  cannot  be  convicted.  1  Greenl.Ev.  §§  258,  259. 

Note. — Perjury,  sufficiency  of  evidence  to  convict. 

When  oral  testimony  is  relied  upon  to  establish  perjury,  the  general  rule  is 
that  there  must  be  the  testimony  of  two  witnesses,  or  of  one  witness  corrobo- 
rated by  circumstances.  Two  witnesses  are  generally  required.  Reg.  v.  Mus 
cot,  10  Mod.  194;  Bex  v.  Broughton,  2,Strange,  1280;  Clifford  v.  Brooke,  13  Ves. 
Jr.  134;  2  Bridginan,  Index,  395;  2  Stark.  Ev.  262;  Rex  v.  Mayhew,  6  Car.  &  P. 
315,  note. 

Because  if  a  person  could  be  found  guilty  on  the  testimony  of  a  single  wit- 
ness, there  would  only  be  one  oath  against  another.     4  Bl.  Com.  358. 

But  where  the  defendant  himself,  in  one  part  of  his  affidavit,  states  a  fact,  and 
afterwards,  in  another  part,  contradicts  it,  then  one  witness  would  be  sufficient 
to  prove  the  falsity  of  the  statement  first  made.  Rex  v.  Harris,  5  Barn.  &  Aid. 
926,  929,  note. 

On  an  indictment  for  perjury,  two  witnesses  are  not  necessary  to  disprove  the 
facts  sworn  to  by  the  defendant;  but  where  there  is  but  one  witness,  some  other 
evidence  must  be  adduced  independent  of,  and  in  addition  to  his  testimony. 
StaU  v.  Hayward,  1  Nott  &  McC.  1..  547;  Woodbeck  v.  Keller,  6  Cow.  118;  /•'  i 
v  Mayhew,  6  Car.  &  P.  315;  Coulter  v.  Stuart,  2  Yen:.  225;  Merritt's  Case,  -1 
City  Hall  Rec.  58;  Francis'  Case,  4  City  Ball   Rec    L2;  2  Russell,  Crimes,  544, 

545. 

The  oafli  of  one  witness  and  the  declarations  of  the  defendant  inconsistent 


798  LAW    OF    EVIDENCE    IN    CRIMINAL    CASES. 

•with  the  oath  in  which  perjury  is  assigned  are  sufficient.  State  v.  Molier,  12 
N.  C.  263;  Woodbeek  v.  Keller,  supra. 

This  strong  proof  in  cases  of  perjury  seems  to  be  required  not  only  as  to  the 
falsity  of  the  oath,  but  as  to  the  facts  sworn  to.  State  v.  Howard,  4  McCord, 
L.  159. 

On  a  trial  for  perjury,  the  testimony  of  one  witness  is  sufficient  to  prove  that 
the  defendant  swore  as  is  alleged  in  the  indictment.  Com.  v.  Pollard,  12  Met. 
225. 

The  testimony  of  one  witness,  corroborated  by  the  letters  of  the  defendant  to 
him,  is  competent  and  sufficient  evidence  of  the  falsity  of  the  statement  alleged 
as  the  perjury.     Com.  v.  Parker,  2  Cush.  212. 

Subornation  of  perjury  may  be  proved  by  the  testimony  of  one  witness. 
Com.  v.  Douglass,  5  Met.  241. 

The  better  opinion  is  that  one  who  swears  in  honest  belief,  although  without 
probable  cause,  is  not  guilty.  Browne,  Crim.  L.  86.  Citing  Com.  v.  Brady, 
5  Gray,  78;  State  v.  Chamberlain,  30  Vt.  559;   Com.  v.  Thompson,  3  Dana,  301. 

Whether  materiality  is  a  question  of  fact  or  of  law  is  mooted.  Browne,  Crim. 
L.  86;  2  Bishop,  Crim.  L.  §  1039,  a. 

To  establish  perjury  requires  two  witnesses,  or  circumstances  corroborating  a 
single  witness.     Com.  v.  Pollard,  12  Met.  225;  Williams  v.  Com.  91  Pa.  493. 

To  constitute  a  valid  oath,  for  the  falsity  of  which  perjury  will  lie,  there 
must  be  an  unequivocal  and  present  act  in  some  form  in  the  presence  of  an  offi- 
cer authorized  to  administer  oaths,  by  which  the  affiant  consciously  takes  upon 
himself  the  obligation  of  an  oath. 

The  mere  delivery  of  an  affidavit,  signed  by  the  person  presenting  it,  to  the 
officer  for  his  certificate,  is  not  such  an  act.  O'Reilly  v.  People,  86  N.  Y.  154T 
40  Am.  Rep.  525. 

To  sustain  a  conviction,  it  was  necessary  to  show  that  the  oath  had  been  le- 
gally administered  and  taken  in  due  form  of  law.  People  v.  Tuttle,  36  N.  Y. 
431;  State  v.  Morris,  9  N.  H.  96;  Dodge  v.  State,  24  N.  J.  L.  455. 

While  it  is  perjury  for  one  knowingly  and  willfully  to  swear  to  a  fact  as  true 
about  which  he  knows  nothing,  the  swearing  to  an  affidavit,  the  contents  of 
which  the  deponent  does  not  know,  is  not  necessarily  perjury;  to  constitute  the 
crime  he  must  have  willfully  made  the  affidavit,  knowing  that  he  did  not  know 
its  contents  or  the  facts  alleged.     Byrnes  v.  Byrnes,  102  N.  Y.  5. 

To  sustain  a  conviction  of  perjury,  it  is  essential  that  the  testimony  given 
should  be  false,  and  known  to  be  such,  or  not  known  to  be  true,  though  so 
alleged.  If  the  witness  testified  under  an  honest  mistake  or  misapprehension 
and  honestly  believed  what  he  testified  to  be  true,  a  conviction  cannot  be  had. 
People  v.  Dishler,  4  N.  Y.  Crim.  Rep.  188. 


CHAPTER  LVII. 

BIGAMY. 

§  506.  Wliat  Constitutes  the  Crime. 

507.  What  Evidence  is  Admissible. 

508.  The  Case  of  Reg.  v.  Lumley  Examined. 

509.  Rule  under  the  Common  Laic. 

510.  Domestic  Marriage,  how  Proved. 

511.  Views  of  an  Eminent  Text-writer. 

512.  Act  aid  Marriage  mast  be  Shozon. 

513.  First  Marriage  may  be  Proved  by  Confession. 

514.  General  Reputation  and  Co-ltabitation  as  Proof  of  Mar- 

riage. 

515.  What  must  be  Shown  by  the  Prosecution. 

516.  Legal  Wife  not  a  Competent  Witness. 

§  506.  What  Constitutes  the  Crime. — "A  person  who.  having 
a  husband  or  wife  living,  marries  another  person,  is  guilty  of 
bigamy,  and  is  punishable  by  imprisonment  in  a  penitentiary  or 
state  prison  for  not  more  than  five  years. 

"  The  last  section  does  not  extend, 

"1.  To  a  person  whose  former  husband  or  wife  has  been  absent 
for  five  years  successively  then  last  past,  without  being  known  to 
him  or  her  within  that  time  to  be  living,  and  believed  by  him  or 
her  to  be  dead;  or, 

"2.  To  a  person  whose  former  marriage  has  been  pronounced 
void,  or  annulled,  or  dissolved,  by  a  judgment  of  a  court  of  com- 
petent jurisdiction,  for  a  cause  other  than  his  or  her  adultery,  or,. 

"  3.  To  a  person  who  being  divorced  for  his  or  her  adultery  has 
received  from  the  court  which  pronounced  the  divorce,  permission 
to  marry  again,  or, 

"4.  To  a  person  whose  former  husband  or  wife  has  been  sen- 
tenced to  imprisonment  for  life."     X.  Y.  Penal  Code,  §§  298,  299. 

§  507.  What  Evidence  is  Admissible. —  As  to  what  e\  idence 
is  admissible,  and  what  evidence  is  sufficient,  to  establish  a  prior 
valid  marriage,  there  seems  to  exist  a  contrariety  of  opinion  and 
decision  in  the  books.  A  valid  marriage  must  be  proved,  ami  some 
statutes  say  "mere  reputation"  is  not  sufficient  proof  of  the  fact. 

799 


800  LAW    OF    EVIDENCE    IN    CRIMINAL    CASES. 

Not  that  reputation  is  not  admissible  as  evidence  to  be  taken  in 
connection  with  other  proofs  to  establish  the  fact,  but  that  in  and 
of  itself  alone  and  without  other  evidence,  it  is  insufficient  to 
establish  the  fact. 

§  508.  The  Case  of  Reg.  v.  Lumley  Examined. — The  judg- 
ment in  Reg.  v.  Lumley,  L.  R.  1  C.  C.  196,  sustains  this  rule,  and 
in  fact  goes  further,  and  holds  that  the  law  makes  no  presumption 
that  a  person  continues  to  live,  from  the  proof  of  his  or  her  exist- 
ence at  a  former  date.  In  that  case,  which  was  a  prosecution  for 
bigamy,  the  facts  were  as  follows:  The  prisoner  married  one 
Victor  at  St.  Helier's  in  the  island  of  Jersey,  in  the  year  1836, 
and  lived  with  him  in  England  until  the  middle  of  1843,  when 
they  were  separated,  and  she  was  taken  by  her  parents  back  to 
Jersey,  where  she  resumed  her  maiden  name.  On  the  9th  of 
July,  1847,  she  describing  herself  as  a  spinster,  married  Lumley, 
with  whom  she  lived  until  March,  1864.  Nothing  was  heard  of 
Victor  from  the  time  the  prisoner  left  him  in  1843.  No  evi- 
dence was  given  of  the  age  of  Victor,  by  which  it  might  be 
reasonably  inferred  that  death  had  supervened.  The  learned 
judge  (Lush)  before  whom  the  trial  was  had,  directed  the  jury 
that  there  being  no  circumstances  leading  to  any  reasonable  infer- 
ence that  he  had  died,  "Victor  must  be  presumed  to  have  been 
living  at  the  date  of  the  second  marriage."  The  question  whether 
this  direction  was  right  or  not  was  reserved  for  the  opinion  of  the 
court.  The  case  was  argued  before  a  court  composed  of  Kelly, 
G.  B.,  Cleasby,  B.,  Byles,  Lush  and  Brett,  J  J.  Lush,  J.,  deliv- 
ered the  opinion  of  the  court.  He  said:  "We  are  of  opinion 
that  the  direction  to  the  jury  in  this  case  (stating  it  as  given  above) 
was  erroneous.  In  an  indictment  for  bigamy  it  is  incumbent 
upon  the  prosecution  to  prove,  to  the  satisfaction  of  the  jury,  that 
the  husband  or  wife,  as  the  case  may  be,  was  alive  at  the  date  of 
the  second  marriage.  That  is  purely  a  question  of  fact.  The 
existence  of  the  party  at  an  antecedent  period  may  or  may  not 
afford  a  reasonable  inference  that  he  was  living  at  the  subsequent 
date.  If  f«>r  example,  it  were  proved  that  he  was  in  good  health 
on  the  day  preceding  the  second  marriage,  the  inference  would  be 
strong,  almost  irresistible  that  he  was  living  on  the  latter  day,  and 
the  jury  would  in  all  probability  find  that  he  was  so.  If  on  the 
other  hand,  it  were  proved  that  he  was  then  in  a  dying  condition, 
and  nothing  further  was  proved,  they  would   probably  decline  to 


BIGAMY.  801 

draw  that  inference.  Thus  the  question  is  entirely  for  the  jury. 
The  law  makes  no  presumption  either  way.  The  cases  cited  of 
Hex  v.  Twyning,  2  Barn.  &  Aid.  386;  Rex  v.  Harborne,  2  Ad. 
&  El.  540,  and  Nepean  v.  Doe,  2  Mees.  &  W.  894,  appear  to  us 
to  establish  this  proposition.  Where  the  only  evidence  is  that  the 
party  was  living  at  a  period  which  is  more  than  seven  years  prior 
to  the  second  marriage,  there  is  no  question  for  the  jury.  The 
proviso  in  the  act  (24  &  25  Vict.  chap.  100,  §  57)  then  comes 
into  operation,  and  exonerates  the  prisoner  from  criminal  liability, 
though  the  first  husband  or  wife  be  proved  to  have  been  living  at 
the  time  when  the  second  marriage  was  contracted.  The  legis- 
lature by  this  proviso  sanctions  a  presumption  that  a  person  who 
has  not  been  heard  of  for  seven  years  is  dead;  but  the  proviso 
affords  no  ground  for  the  converse  proposition,  viz:  that  when  a 
party  has  been  seen  or  heard  of  within  seven  years,  a  presumption 
arises  that  he  is  still  living.     That  is  always  a  question  of  fact." 

§  509.  Rule  under  the  Common  Law. — Where  a  suit  for 
divorce  originated  at  an  early  day,  and  occurring  on  a  state  of 
facts  at  a  time  when  the  common  law  was  not  the  rule  of  action 
as  part  of  the  law  of  the  country,  it  was  held  that  "cohabitation 
and  common  repute,  as  establishing  a  former  marriage  in  countries 
governed  bv  the  common  law,  cannot  be  admitted  as  evidence  to 
annul  a  subsequent  marriage  contracted  here  while  Texas  was  a 
part  of  Mexico,  and  solemnized  according  to  the  laws  which  then 
governed  this  country."  And  in  such  case  it  was  further  held 
that  "the  production  of  a  certified  copy  from  the  office  of  a  county 
recorder  in  the  state  of  Missouri  of  a  certificate  under  the  sign 
manual  of  a  justice  of  the  peace  that  he  had  solemnized  such 
former  marriage  according  to  law,  cannot  be  admitted  as  compe- 
tent evidence  to  establish  such  foreign  marriage  to  the  exclusion 
of  the  domestic  marriage,  without  due  proof  of  the  laws  of  that 
state  relating  to  the  subject-matter."  Smith  v.  8m ith,  1  Tex. 
621,  46  Am.  Dec.  121;   Rice  v.  Rice,  31  Tex.  174. 

After  the  common  law  became  the   ride  of  action,  it  was  held 
that  "proof  of  general  reputation,  cohabitation  of  parties,  and  gen 
era!  reception  as  man  and  wife,  was  competent  evidence  in  a  suit 
for  divorce."      Wright  v.  Wright,  6  Tex.  3. 

§  510.  Domestic  Marriage,  how  Proved. — Proof  of  a  do 
tic  marriage,  or  one  thus  solemnized,  may  unquestionably  be  made 
51 


802  LAW    OF    EVIDENCE   IN    CRIMINAL    CASES. 

by  the  record,  or  by  a  certified  copy  thereof.  Rev.  Stat.  art. 
2252.  This  however  is  nowhere  declared  the  only,  or  even  the 
best  mode  of  making  the  proof  in  domestic  marriages.  It  is- 
believed  that  even  in  such  cases,  without  the  introduction  of  the 
record  at  all,  the  fact  may  be  fully  and  completely  established  by 
the  testimony  of  eye-witnesses  who  were  present  when  the  rites 
were  solemnized.  Where  no  rule  of  proof  is  expressly  prescribed 
by  statute,  the  marriage  may  be  proven  by  parol. 

Mr.  Bishop  says:  "The  common  course  of  proof  is  to  present 
the  record  evidence,  and  with  it,  evidence  to  identify  the  parties, 
and  these  are  prima  facie  sufficient.  The  testimony  of  persons 
present  at  the  marriage  is  good  evidence  without  the  record, 
though  the  absence  of  the  record  may,  under  some  circumstances, 
create  suspicion."     Bishop,  Statutory  Crimes,  §  610. 

Where  the  time  and  place  of  the  first  marriage  are  known,  the 
rules  thus  announced  clearly  indicate  the  character  and  sufficiency 
of  the  evidence  to  be  adduced.  But  in  prosecutions  for  bigamy 
it  happens,  in  a  majority  of  instances,  perhaps  especially  where 
the  first  marriage  took  place,  as  is  generally  the  case  with  biga- 
mists, in  some  other  state  or  country,  that  the  prosecuting  officer 
must  be  wholly  ignorant  of,  and  that  it  is  impossible  for  him  to 
find  out,  the  time  and  place  of  the  prisoner's  first  marriage,  or  the 
names  and  residences  of  those  present  at  its  consummation. 
Such  avenues  of  information  are  generally  endeavored  to  be  con- 
cealed by  the  guilty  party.  Where  they  are  thus  concealed,  and 
the  prosecution  has  been  unable  to  find,  open  up  and  produce 
them,  what  evidence  aliunde  must  and  can  be  produced  to  supply 
their  places '?  We  find,  in  a  note  to  the  case  of  Taylor  v.  State, 
52  Miss.  84,  reproduced  in  2  Hawley's  American  Criminal  Re- 
ports, the  following  apt  observations  on  this  subject  by  the  editor. 
He  says  :  "  In  some  states  it  has  been  held,  where  in  a  criminal 
case  it  was  found  necessary  to  prove  a  marriage  in  order  to  con- 
vict a  defendant  of  a  crime  with  which  he  was  charged,  that  all 
the  essentials  to  a  valid  marriage  must  be  strictly  proved,  as  well 
as  the  law  of  the  state  or  country  where  the  marriage  was  cele- 
brated; and  also  that  the  admissions  of  the  defendant's  cohabita- 
tion and  reputation  were  not  sufficient  evidence  of  such  marriage. 
But  experience  has  proven  that  such  a  rule  in  the  United  States 
amounts,  in  a  large  number  of  cases,  to  a  denial  of  justice.  Our 
people  arc  migratory  in  their  habits,  and  very  many  of  our  foreign 


BIGAMY.  803 

born  citizens  were  married  in  the  countries  where  they  were  born. 
To  prove,  in  Missouri,  a  marriage  which  was  celebrated  in 
Bavaria,  or  even  in  Canada,  within  the  rule  adopted  in  some 
cases,  is  oftentimes  an  impossible  task.  Doubtless  on  account  of 
this  difficulty,  the  rule  has  been  modified,  and  the  better  doctrine 
now  is  that  cohabitation,  reputation  and  admissions,  are  sufficient 
evidence  of  a  legal  marriage  to  submit  to  a  jury."  2  Ilawley, 
Am.  Crim.  Rep.  17.  The  doctrine  and  the  opposing  and  con- 
flicting authorities  are  all  fully  noted  by  the  editor  in  his  note. 

In  Re  Rhene,  L.  R.  5  Oh.  App.  139,  the  question  whether 
there  was  any  presumption  of  law  that  a  person  continued  to  live 
arising  upon  proof  of  prior  existence  was  very  fully  discussed  and 
it  was  held  that  the  law  makes  no  such  presumption.  This  was 
held  to  apply  to  civil  and  criminal  cases  alike.  This  question  was 
also  discussed  at  length  by  Field,  J.,  in  a  case  {Montgomery  v. 
Bevans,  1  Sawy.  666)  tried  before  him  in  the  United  States  cir- 
cuit court  for  California.  He  reviewed  several  of  the  English 
cases  considered  in  Re  Rhene,  as  well  as  this  case,  and  came  to 
the  conclusion  that  the  law  as  declared  in  England  in  Re  Rhene 
was  different  from  the  law  which  obtains  in  this  country,  stating: 
at  the  time  that  when  this  presumption  of  the  continuance  of  life 
conflicts  with  the  presumption  of  innocence,  the  latter  prevails. 
In  the  opinion  delivered  in  the  case  referred  to,  the  learned  justice 
says  :  "  But  the  law  as  thus  declared  in  England  is  different  from 
the  law  which  obtains  in  this  country,  so  far  as  it  relates  to  the 
presumption  of  the  continuance  of  life.  Here,  as  in  England,  the 
law  presumes  that  a  person  who  has  not  been  heard  of  fur  seven 
years  is  dead,  but  here  the  law,  differing  in  this  respect  from  the 
law  of  England,  presumes  that  a  party  once  shown  to  be  alive 
continues  alive  until  his  death  is  proved,  or  the  rule  of  law  applies 
by  which  death  is  presumed  to  have  occurred,  that  is,  at  the  end 
of  seven  years.  And  the  presumption  of  life  is  received,  in  the 
absence  of  any  countervailing  testimony,  as  conclusive  of  the  fact, 
establishing  it  for  the  purpose  of  determining  the  rights  of  parties 
as  fully  as  the  most  positive  proof.  The  only  exception  to  the 
operation  of  this  presumption  is  when  it  conflicts  with  the  pre- 
sumption of  innocence,  in  which  case  the  latter  prevails."  Mont- 
gomery v.  Bevans,  1  Sawy.  666.  The  rule  thus  stated  as  to  these 
conflicting  presumptions  by  Field,  J.,  is  sustained  by  Rex  v. 
Twyning,  2  Barn.  &  Aid.  385. 


804  LAW    OF    EVIDENCE    IN    CRIMINAL    CASES. 

§  511.  Views  of  an  Eminent  Text-writer. — The  offense  con- 
sists in  entering  into  a  void  marriage  where  a  valid  one  already 
exists.  Proof  of  an  actual  or  ceremonial  first  marriage  is  not 
necessary;  but  evidence  that  the  prisoner  has  declared  himself 
and  has  been  reputed  to  be  married  will  suffice.  This,  however, 
is  denied  in  some  states.  In  some  states  a  party  against  whom  a 
divorce  is  obtained  may  not  marry  while  the  other  party  is  living, 
and  disobedience  is  bigamy.  But  a  remarriage  out  of  the  state, 
followed  by  a  return  to  the  state,  is  not  bigamy,  even  if  the  sec- 
ond wife  is  an  inhabitant  of  that  state,  and  the  parties  went  away 
to  evade  the  law.  Browne,  Crim.  L.  p.  39,  citing  People  v.  Brown, 
34  Mich.  339,  22  Am.  Rep.  531;  Com.  v.  Jackson,  11  Bush,  679, 
21  Am.  Rep.  225;  Williams  v.  State,  54  Ala.  131,  25  Am.  Rep. 
665;  Halhrooh  v.  State,  34  Ark.  511,  36  Am.  Rep.  17;  Parker  v. 
State,  77  Ala.  77,  53  Am.  Rep.  643;  State  v.  Hughes,  35  Kan. 
626,  57  Am.  Rep.  195  ;  Dumas  v.  State,  14  Tex.  App.  464,  46 
Am.  Rep.  241;  Com.  v.  Littlejohn,  15  Mass.  163;  State  v.  Ros- 
well,  6  Conn.  446;  People  v.  Humphrey,  7  Johns.  314;  Green  v. 
State,  21  Fla.  403,  58  Am.  Rep.  670;  Com.  v.  Putnam,  1  Pick. 
136;  People  v.  Faber,  92  K  Y.  146,  44  Am.  Rep.  357;  Com.  v. 
Lane,  113  Mass.  458,  18  Am.  Rep.  509;  Van  Voorhis  v.  Brint- 
nall,  86  K  Y.  18,  40  Am.  Rep.  505. 

§  512.  Actual  Marriage  must  be  Shown. — Mr.  Bishop  says: 
''Record  evidence  and  evidence  of  witnesses  present  at  the  cere- 
mony will  be  required  where  these  can  be  had.  But  where  the 
circumstances  of  the  particular  case  show  that  these  cannot  be 
had,  and  in  all  cases  as  confirmatory  of  them,  and  in  the  proper 
cases  as  dispensing  with  them,  it  is  competent  to  show  the  admis- 
sions of  the  party  or  his  prior  cohabitation  under  pretense  of 
marriage,  and  various  other  things  of  like  import."  Bishop, 
Statutory  Crimes,  §  609. 

In  Com.  v.  Jackson,  11  Bush,  679,  21  Am.  Rep.  225,  where 
the  question  before  the  court  was  what  proof  of  marriage  was  ad- 
missible and  sufficient  in  a  case  of  bigamy,  the  court  says :  "The 
circuit  judge  seems  to  have  been  of  the  opinion  that  an  indict- 
ment for  bigamy  could  not  be  maintained  without  proof  of  the 
fact  of  two  marriages,  either  by  record  evidence  or  by  the  testi- 
mony of  one  or  more  witnesses  who  were  present  at  the  solemni- 
zation of  the  marriage  rites;  or,  in  other  words,  that  the  declara- 
tions and   conduct  of    defendant,  admitting  his    marriage,  and 


BIGAMY.  805 

living  with  and  recognizing  the  woman  as  his  wife,  were  not 
sufficient  to  warrant  the  jury  in  finding  a  verdict  against  him. 
This  is  a  subject  about  which  there  is  irreconcilable  conflict  in  the 
authorities.  In  Massachusetts,  New  York  and  Connecticut,  and 
perhaps  in  some  other  states,  it  has  been  held  that  in  prosecutions 
for  bigamy  an  actual  marriage  of  the  prisoner  must  be  proven, 
and  that  neither  cohabitation,  reputation,  nor  the  confessions  of 
the  prisoner  are  admissible  for  that  purpose,  or  if  admissible,  are 
not  of  themselves  sufficient  to  warrant  conviction.  Com.  v.  Lit- 
ilejohn,  15  Mass.  163;  Stale  v.  Roswell,  6  Conn.  446;  People  v. 
Humphrey,  7  Johns.  314.  On  the  other  hand,  it  has  been  held 
in  South  Carolina,  Virginia,  Georgia,  Alabama,  Ohio,  Pennsylva- 
nia, Maine  and  Illinois,  that  in  prosecutions  for  bigamy  the  con- 
fessions of  the  prisoner  deliberately  made  are  admissible  as  evi- 
dence to  prove  marriage  in  fact,  and  in  some  of  those  states  that 
such  confessions  are  of  themselves  sufficient  to  authorize  the  jury 
to  convict.  State  v.  Britton,  4  McCord.  L.  256;  State  v.  Hilton, 
3  Rich.  L.  434,  45  Am.  Dec.  7S3;  Warner  v.  Com.  2  Va.  Cas.  95; 
Cook  v.  State,  11  Ga.  53,  56  Am.  Dec.  410;  Cameron  v.  State,  14 
Ala.  546,  48  Am.  Dec.  Ill;  Wolverton  v.  State,  16  Ohio,  173,  47 
Am.  Dec.  373;  Com.  v.  Murtagh,  1  Aslnn.  272;  Ferner  v.  Halla- 
cher,  8  Serg.  &  R.  159;  Cayford's  Case,  7  Me.  57;  Ham's  Case, 
11  Me.  392;  Stale  v.  Hodgskins,  19  Me.  155;  Jackson  v.  People, 
3  111.  231." 

§  513.  First  Marriage  may  be  Proved  by  Confession.— 
In  Miles  v.  United  States,  103  U.  S.  304,  26  L.  ed.  481,  it  was 
held  by  the  Supreme  Court  of  the  United  States,  that  "on  an  in- 
dictment for  bigamy  the  first  marriage  may  be  proved  by  the 
admissions  of  the  prisoner,  and  it  is  for  the  jury  to  determine 
whether  what  he  .said  was  an  admission  that  he  was  actually  and 
legally  married  according  to  the  laws  of  the  country  where  the 
marriage  was  solemnized."  And  in  addition  to  the  cases  cited 
above  in  Jackson  v.  People,  3  111.  231,  this  last  opinion  cites  Reg. 
v.  Svmmonsto,  1  Car.  &  K.  I'll,  cited  in  1  Russell,  Crimes 
(Greaves'  ed.)  218;  Dutchess  of  Kingston's  Case,  20  Eow.  St.  Tr. 
355;  Rex  v.  Trueman,  1  East,  1'.  C.  470;  State  v.  Lilly,  44  Mr. 
469;  Bex  v.  Norwood,  1  East,  P.  C.  470;  Reg.  v.  Newton,  2  Mood. 
&R.  503;  State  v.  McDonald,  25  Mo.  L76;  State  v.  Seals,  L6Ind. 
352;  Brown  v.  State,  52  Ala,.  338;  Williams  v.  State,  44  Ala.  24. 
In  Langtry  v.  State,  30  Ala.  536,  it  was  held  that  in  prosecutions 


806  LAW    OF    EVIDENCE    IN    CRIMINAL    CASES. 

for  bigamy  the  first  marriage  may  be  proved  by  cohabitation  and 
the  confessions  of  the  prisoner;  and  such  evidence,  if  full  and  sat- 
isfactory, is  sufficient  to  authorize  a  conviction  without  the  pro- 
duction of  the  records  or  the  testimony  of  a  witness  who  was 
present  at  the  ceremony. 

It  was  held  in  England  and  in  some  of  the  states  of  this  Union 
that  evidence  of  declarations  as  to  a  former  marriage  was  compe- 
tent in  the  trial  of  an  indictment  for  bigamy  against  the  party 
making  them.  Miles  v.  United  States,  103  U.  S.  304,  26  L.  ed. 
481. 

But  in  New  York  it  has  been  held  that  such  evidence  was  not 
sufficient  in  a  prosecution  for  bigamy,  to  establish  a  marriage  even 
against  the  party  making  the  admissions.  People  v.  Humphrey, 
7  Johns.  314;  Gahagan  v.  People,  1  Park.  Crim.  Eep.  378.  The 
court  in  the  latter  case  held  them  admissible  to  corroborate  the 
proof  of  the  actual  marriage. 

§514.  General  Reputation  and  Cohabitation  as  Proof  of 
Marriage. — It  appears  to  us  to  be  well  settled  from  many  au- 
thorities that  general  reputation,  cohabitation,  and  admissions  or 
confessions  of  the  party  are  all  admissible  evidence  of  the  fact  of 
the  first  marriage.  General  reputation  alone  is  insufficient,  but 
taken  in  connection  with  cohabitation  and  admission,  is  competent 
evidence  to  establish  a  prima  facie  case  sufficient  to  sustain  a  ver- 
dict and  judgment  of  conviction  for  bigamy.  Whenever  such 
evidence  establishes,  in  the  minds  of  the  jury,  beyond  a  reasonable 
doubt,  the  existence  of  the  fact  of  a  valid  first  marriage,  then  it  is 
sufficient  in  that  regard  to  sustain  a  verdict  and  judgment  for 
bigamy.  A  valid  marriage  must  be  proven,  and  if  such  evidence 
is  relied  upon  it  must  establish  the  existence  of  a  valid  marriage 
to  the  satisfaction  of  the  jury  beyond  a  reasonable  doubt. 

In  Miles  v.  United  States,  103  IT.  S.  304,  26  L.  ed.  481,  where 
it  is  held,  approving  Reg.  v.  Simmonsto,  1  Car.  &  K.  164,  that 
"on  an  indictment  for  bigamy  the  first  marriage  may  be  proved 
by  the  admissions  of  the  prisoner,  and  it  is  for  the  jury  to  deter- 
mine whether  what  he  said  was  an  admission  that  he  had  been  legally 
married  according  to  the  laws  of  the  country  where  the  marriage 
was  solemnized."  The  court,  of  itself  high  authority,  cited,  as 
also  sustaining  this  view,  Reg.  v.  Upton,  1  Car.  &  K.  165,  note, 
cited  in  1  Russell,  Crimes  (Greaves'  ed.)  218;  Dutchess  of  Kings- 
tori's  Case,  20  How.  St.  Tr.  355;  Rex  v.  Trueinan,  1  East,  P.  C. 


BIGAMY.  807 

470;  CayforcVs  Case,  7  Me.  57;  Ham's  Case,  11  Me.  391;  State  v. 
Libly,  44  Me.  469;  £fafe  v.  5*fton,  3  Rich.  L.  434,  45  Am.  Dec. 
783;  State  v.  Br  iff  on,  4  McCord,  L.  256;  Warner  v.  Com.  2  Va. 
<Cas.  95;  iiks  v.  Norwood,  1  East,  P.  C.  470;  Com,,  v.  Murtagh,  1 
Ashra.  272;  5«y.  v.  Newton,  2  Mood.  &  R.  503;  SfcaA  v.  McDon- 
ald, 25  Mo.  176;  Wofoerton  v.  fifcote,  16  Ohio,  173,  47  Am.  Dec. 
•373;  State  v.  Seals,  16  Ind.  352;  Arnold  v.  State,  53  Ga.  574; 
Cameron  v.  State,  14  Ala.  546,48  Am.  Dec.  Ill;  Brown  v.  $fote, 
52  Ala.  338;  Williams  v.  Sltofe,  44  Ala.  24;  Cbm.  v.  Jackson,  11 
Bush,  679,  21  Am.  Rep.  225.  The  court  then  goes  on  to  say 
{Miles  v.  United  States,  103  U.  S.  312,  26  L.  ed.  484)  that  the 
declarations  of  the  defendant  "appear  to  have  been  deliberately 
and  repeatedly  made,  and  under  such  circumstances  as  tended  to 
show  that  they  had  reference  to  a  formal  marriage  contract,"  and 
hold  that  there  was  no  error  in  the  court  below  admitting  the 
declarations,  nor  in  the  charge  of  the  judge,  which  was,  "The 
declarations  of  the  accused  were  evidence  proper  to  be  considered 
by  the  jury  as  tending  to  prove  an  actual  marriage,  and  that  such 
marriage  might  be  proved  like  any  other  fact,  by  the  evidence 
of  the  defendant,  or  by  circumstantial  evidence." 

So  in  Beg.  v.  Newton,  2  Mood,  cv;  R.  503,  Wightman,  J.,  held 
that  the  prisoner's  admissions,  deliberately  made,  of  a  prior  mar- 
riage in  a  foreign  country,  are  sufficient  evidence  of  such  marriage, 
without  proving  it  to  have  been  celebrated  according  to  the  law 
•of  the  country  where  it  is  stated  to  have  taken  place.  1  Roscoe, 
Crim.  Ev.  (8th  Am.  ed.)  454. 

§  515.  What  must  he  Shown  by  the  Prosecution. — The 
prosecutor  must  prove  the  two  marriages;  that  at  the  time  of  the 
second  marriage  the  offender  was  legally  married  to  another. 
The  law  will  not  presume  a  valid  marriage  in  cases  of  bigamy  as 
it  will  in  civil  eases.     Rex  v.  Jacobs,  1  Mood.  C.  C.  140. 

Upon  an  indictment  for  bigamy,  it  was  proved  by  a  person  who 
was  present  at  the  prisoner's  second  marriage,  that  the  woman 
was  married  to  him  by  the  name  of  Hannah  Wilkinson,  the  name 
laid  in  the  indictment,  but  there  was  no  other  proof  that  the 
woman  in  question  was  Hannah  Wilkinson.  Parke,  ./.,  held  the 
proof  to  be  insufficient,  and  directed  an  acquittal.  He  subse 
quently  expressed  a  decided  opinion  that  he  was  right;  and  added, 
that  to  make  the  evidence  sufficient,  there  should  have  hem  proof 
that  the  prisoner  "was  then  and  there  married  toacertain  woman, 


808  LAW    OF    EVIDENCE    IN    CRIMINAL    CASES. 

by  the  name  of,  and  who  called  herself  Hannah  Wilkinson,"" 
because  the  indictment  undertakes  that  a  Hannah  Wilkinson  was 
the  person,  whereas,  in  fact,  there  was  no  proof  tliat  she  had  ever 
before  gone  by  that  name,  and  if  the  banns  had  been  published 
in  a  name  which  was  not  her  own,  and  which  she  had  never  gone 
by,  the  marriage  would  be  invalid.  Hex  v.  Drake,  1  Lew.  C. 
C.  25. 

If,  in  a  case  of  bigamy,  there  be  a  discrepancy  between  the 
Christian  name  of  the  prisoner's  first  wife,  as  laid  in  the  indict- 
ment, and  as  stated  in  the  copy  of  the  register  which  is  produced 
to  prove  the  first  marriage,  the  prisoner  must  be  married,  and 
having  a  husband  alive,  married  with  the  widower  of  the  de- 
ceased sister,  she  is  guilty  of  bigamy,  though  by  5  &  6  Wm.  IY. 
chap.  54,  such  marriage  is  declared  to  be  null  and  void  to  all  in- 
tents and  purposes  whatsoever.  In  deciding  the  point,  Lord 
Denman,  Ch.  J.,  said :  "  I  have  no  doubt  whatever  that  this 
marriage  was  null  and  void  under  the  act  mentioned,  but  that 
circumstance  does  not,  in  my  opinion,  affect  the  charge  against 
the  female  prisoner.  Her  offense  consisted,  not  in  the  contract- 
ing that  which,  but  for  the  existence  of  her  husband,  would  have 
been  a  legal  marriage,  but  in  her  going  through  the  ceremony  of 
marriage,  and  appearing  to  contract  that  which  was  a  legal  and 
binding  union,  at  the  time  when  she  already  had  a  husband  living. 
That  single  fact  constitutes  the  crime  and  the  proof  of  it,  and 
whether  the  union  secondly  contracted  would  or  would  not  be 
null  and  void,  if  contracted  under  other  circumstances,  is  a  matter 
wholly  immaterial  to  the  inquiry.  If  it  were  otherwise  in  this 
case,  the  same  argument  would  apply  to  all  other  cases;  for  if  the 
second  marriage  be  not  null  and  void,  the  crime  of  bigamy  can- 
not be  committed.  I  am,  therefore,  decidedly  of  opinion  that 
Jane  Bawm  committed  bigamy  by  marrying  with  Thomas  Webbe,. 
though  it  was  within  the  prohibited  degree  of  affinity."  Reg, 
v.  Bawm,  1  Cox,  C.  C.  33. 

The  validity  of  a  marriage  is  to  be  determined  by  the  law  of 
the  place  where  it  was  celebrated;  if  valid  there,  it  is  valid  every- 
where.    Phillips  v.  Gregg,  10  Watts,  158. 

The  prosecutor  must  prove  the  two  marriages,  that  at  the  time 
of  the  second  marriage  the  offender  was  legally  married  to  the 
other.  The  law  will  not  presume  a  valid  marriage  in  cases  of 
bigamy  as  it  will  in  civil  cases.  Smith  v.  Hujson,  1  Phillim.  257;, 
Rex  v.  Jacobs,  1  Mood.  C.  C.  140. 


BIGAMY.  809 

If  the  first  marriage  be  void,  an  indictment  for  bigamy  cannot 
be  sustained.  Thus,  if  a  woman  marry  A,  and  in  the  lifetime  of 
A  marry  B,  and  after  the  death  of  A,  and  whilst  B  is  alive,  marry 
C,  she  cannot  be  indicted  for  bigamy  in  her  marriage  to  C,  be- 
cause her  marriage  with  B  was  a  mere  nullity.    1  Hale,  P.  C.  693. 

In  Reg.  v.  Simmonsto,  1  Car.  &  K.  164,  it  was  held  that  "on 
an  indictment  for  bigamy,  the  first  marriage  may  be  proved  by 
the  admissions  of  the  prisoner;  and  it  is  for  the  jury  to  determine 
whether  what  he  said  was  an  admission  that  he  had  been  legally 
married  according  to  the  laws  of  the  country  where  the  marriage 
was  solemnized. 

The  same  view  is  sustained  by  the  following  cases :  Reg.  v. 
Upton,  1  Car.  &  K.  165,  note,  cited  in  1  Russell,  Crimes  (Greaves' 
ed.)  218;  Dutchess  of  Kingston 's  Case,^)  How.  St.  Tr.  355;  Rex 
v.  True-man,  1  East,  P.  C.  470;  CayforoVs  Case,  7  Me.  57; 
Ham's  Case,  11  Me.  391;  State  v.  Hilton,  3  Rich.  L.  434,  45  Am. 
Dec.  783;  State  v.  Britton,  4  McCord,  L.  256;  Warner  v.  Com. 
2  Ya.  Cas.  595 ;  Rex  v.  Norwood,  1  East,  P.  C.  470 ;  Com.  v. 
Murtagh,  1  Ashm.  272;  Reg.  v.  Newton,  2  Mood.  &  R.  503; 
State  v.  Lilly,  44  Me.  469;  State  v.  McDonald,  25  Mo.  176; 
Cameron  v.  State,  14  Ala.  546,  48  Am.  Dec.  Ill;  WoVuerton  v. 
State,  16  Ohio,  173,  47  Am.  Dec.  373;  State  v.  Seals,  16  Ind.  352; 
Arnold  v.  State,  53  Ga.  574;  Brown  v.  State,  52  Ala.  338;  Com. 
v.  Jackson,  11  Bush,  679,  21  Am.  Rep.  225;  Williams  v.  State, 
44  Ala.  24. 

It  has  been  said,  that  upon  a  charge  of  bigamy,  a  marriage  in 
fact,  as  distinguished  from  the  acknowledgment  and  cohabitation 
of  the  parties  must  be  proved.  Morris  v.  Millt  r,  4  Burr.  2057; 
Fenton  v.  Reed,  4  Johns.  52,  4  Am.  Dec  214;  People  v. 
Humphrey,  7  Johns.  314;  State  v.  Roswell,  6  Conn.  446.  But 
this  rule,  even  in  the  case  of  bigamy,  is  far  from  being  well  estab- 
lished. What  weight  the  evidence  of  the  admission  and  aets  of 
the  party  accused  is  to  have  in  establishing  the  fact  of  marriage, 
must  depend  very  much,  of  course,  upon  the  peculiar  circum- 
stances of  the  case.  But  I  am  unable  to  see  why  it,  should  be 
necessary  to  prove  the  first  marriage  by  eye-witnesses  of  the 
ceremony,  or  those  who  heard  the  marriage  agreement,  in  every 
other  case,  the  acts  and  admissions  of  a  party,  even  though  he  be 
recused  of  a  capital  offense,  are  evidence  against  him.  It  is  not 
easy  to  say  why  such  evidence  should  not   he  received   to  prove  a 


$10  LAW    OF    EVIDENCE    IN    CRIMINAL    CASES. 

marriage.  "What  weight  the  evidence  should  be  allowed  to  have, 
is  quite  a  different  question.  It  may  not  be  sufficient  to  warrant 
a  conviction,  but  upon  principle,  it  must  be  regarded  as  competent. 
It  should  be  received  for  what  it  is  worth. 

Under  the  rule  that  a  connection  confessedly  illicit  in  its  origin 
or  shown  to  have  been  such,  will  be  presumed  to  retain  that  char- 
acter until  some  change  is  established,  it  is  not  essential  in  order 
to  establish  such  a  change,  or  to  show  the  precise  time  or  occasion 
thereof;  it  is  sufficient  if  the  facts  show  that  a  change  must  have 
occurred  transforming  the  illicit  intercourse  into  cohabitation 
matrimonial  in  its  character.  Badger  v.  Badger,  88  IS".  Y.  547, 
42  Am.  Kep.  263. 

§  516.  Legal  Wife  not  a  Competent  Witness.— Under  the 
prosecution  for  bigamy  under  the  statute  of  1  Jac.  chap.  11,  it 
was  said  by  Lord  Hale  :  "  The  first  and  true  wife  is  not  allowed 
to  be  a  witness  against  her  husband,  but  I  think  it  clear  the 
second  may  be  admitted  to  prove  the  second  marriage  for  she  is 
not  his  wife,  contrary  to  a  sudden  opinion  delivered  in  July,  1664, 
at  the  Assizes  in  Surrey,  in  Arthur  Armstrong'' 8  Case,  for  she  is 
not  so  much  as  his  wife  de  facto."     1  Hale,  P.  C.  693. 

So  in  East's  Pleas  of  the  Crown  the  rule  is  thus  laid  down : 
'"  The  first  and  true  wife  cannot  be  a  witness  against  her  husband, 
nor  vice  versa;  but  the  second  may  be  admitted  to  prove  the 
•second  marriage,  for  the  first  being  proved  she  is  not  so 
much  as  wife  de  facto,  but  that  must  first  be  established."  1 
Ea>t,  P.  C.  460.  The  text  of  East  is  supported  by  the  following 
citation  of  authorities:  1  Hale,  P.  C.  603;  2  MS.  Sum.  331; 
Ann  Cheney's  Case,  (J.  B.  May,  1730,  Sergt,  Foster's  MS. 

In  Peake's  Evidence  (Norris ),  248,  it  is  said :  "  It  is  clearly 
settled  that  a  woman  who  was  never  legally  the  wife  of  a  man, 
though  she  has  been  in  fact  married  to  him,  may  be  a  witness 
against  him;  as  in  an  indictment  for  bigamy,  the  first  marriage 
being  proved  by  other  witnesses,  the  second  wife  may  be  examined 
to  prove  the  marriage  with  her,  for  she  is  not  de  jure  his  wife." 

The  result  of  the  authorities  is  that  as  long  as  the  fact  of  the 
first  marriage  is  contested,  the  second  wife  cannot  be  admitted  to 
prove  it.  When  the  first  marriage  is  duly  established  by  other 
evidence  to  the  satisfaction  of  the  court,  the  second  may  be  ad- 
mitted to  prove  the  second  marriage  but  not  the  first,  and  the 
jury  should  have  been  so  instructed. 


BIGAMY  811 


Any  person  who  was  present  when  the  marriage  took  place  is  a 
■competent  witness  to  prove  the  marriage;  and  it  is  enough  that 
he  is  able  to  state  that  the  marriage  was  celebrated  according  to 
the  usual  form,  and  he  need  not  be  able  to  state  the  words  used. 
Fleming  v.  People,  27  ST.  Y.  329;  Lord  v.  State,  17  Neb.  526. 


CHAPTER  LYIII. 

RAPE. 

§  517.  The  Term  Defined. 

518.  Offense  must  be  "by  Force,  against  her  Will." 

519.  What  must  be  Shown. 

520.  Reputation  of  the  Prosecutrix  for  Chastity. 

521.  Complaint  of  the  Outrage  mag  be  Shown. 

522.  Caution  as  to  the  Admission  of  Uncorroborated  Testi- 

mony. 

523.  Utmost  Resistance  must  be  Shoion. 

524.  Presumption  as  to  Infants. 

525.  Evidence  of  Previous  Offenses  or  Attempts. 

526.  Consent  Secured  by  Fraud. 

§  517.  The  Term  Defined.— "Rape  is  an  act  of  sexual  inter- 
course with  a  female  not  the  wife  of  the  perpetrator,  committed 
against  her  will  or  without  her  consent.  A  person  perpetrating 
such  an  act,  or  an  act  of  sexual  intercourse  with  a  female  not  his- 
wife, 

"  1.  When  the  female  is  under  the.age  of  sixteen  years;  or, 

"  2.  When  through  idiocy,  imbecility  or  any  unsoundness  of 
mind,  either  temporary  or  permanent,  she  is  incapable  of  giving 
consent;  or, 

"  3.  When  her  resistance  is  forcibly  overcome;  or, 

"  4.  When  her  resistance  is  prevented  by  fear  of  immediate  and 
great  bodily  harm,  which  she  has  reasonable  cause  to  believe  will 
be  inflicted  upon  her;  or, 

"5.  When  her  resistance  is  prevented  by  stupor  or  by  weakness 
of  mind  produced  by  an  intoxicating  narcotic,  or  anaesthetic 
agent,  administered  by,  or  with  the  privity  of,  the  defendant;  or,. 

"  6.  When  she  is,  at  the  time,  unconscious  of  the  nature  of  the 
act.  and  this  is  known  to  the  defendant, — is  punishable  by  impris- 
onment for  not  less  than  five  nor  more  than  twenty  years."  jSI.  Y. 
Penal  Code,  §  278. 

§  518.  Offense  must  be  "by  Force,  against  her  Will."'— The 

statutes  contemplate  that  the  offenses  shall  be  "by  force,  against 
her  will."     McClellan's  Dig.  p.  355,   §  36;    2  Bishop,  Crim.  L. 

812 


KAPE.  813 

§  1113;  Charles  v.  State,  11  Ark.  389;  State  v.  Murphy,  6  Ala. 

765,  41  Am.  Dec.  70.     There  must  be  a  concurrence  of  these  two 

ingredients.      Cato  v.  State,  9  Fla.  163,  184.     If  force  was  used 

and  yet  the  carnal  knowledge  was  not  against  the  will  of  the 

female,  the  crime  of  rape  has  not  been  committed.     In  some 

states  it  has  been  held  that  there  must  be  resistance  to  the  extent 

of  the  woman's  ability.     Thus  in  New  York,  in  People  v.  Dohr- 

ing,  59  1ST.  Y.  374,  17  Am.  Rep.  349,  where  a  female  was  but 

fourteen  years  old,  the  decision  is,  that  to  constitute  the  crime  of 

rape  of  a  female  over  ten  years  of  age,  when  it  appears  at  the 

time  of  the  alleged  offense  she  was  conscious,  had  the  possession 

of  her  natural  mental  and  physicial  powers,  was  not  overcome  by 

numbers,  or  terrified  by  threats,  or  in  such  place  and  position 

that  resistance   would   have   been   useless,  it   must  be  made   to 

appear  that  she  did  resist  to  the  extent  of  her  ability  at  the  time 

and  under  the  circumstances.     See  also  People  v.  Morrison,  1 

Park.  Crim.  Rep.  025;  People  v.  Quin,  50  Barb.  128.     In  other 

states  it  is  said  that  there  must  be  the  utmost  reluctance  and  the 

utmost  resistance  upon  the  part  of  the  female,  or  her  will  must  be 

overcome  by  fear  of  the  defendant  {Strang  v.  People,  24  Mich. 

6)  and  that  "the  passive   policy."  or  a  half  way  case  will  not  do, 

or  resistance  of  such  an  equivocal  character  as  to  suggest  actual 

consent,  or  not  a  very  decided  opposition.     State  v.  Burgdorf,5Z 

Mo.  05;  People  v.  Brown,  47  Cal.  447;  People  v.  Hulse,  3  Hill, 

309,  315,  317.     If  the  jury  entertain  a  reasonable  doubt  of  such 

a  reluctance,  they  should  acquit  (Strung  v.  People,  supra)  and 

where  upon  a  trial    the    vital  issue    was   whether    the    act    was 

committed  by  force  and  against  the  will  of  the  prosecutrix,  the 

jury  must  be  satisfied  beyond  a  reasonable  doubt  that  she  did  not 

yield  her  consent  during  any  part  of  the  act.     Brown  v.  People, 

30  Mich.  203. 

In  Com.  v.  McDonald,  110  Mass.  405,  the  trial  judge  charged 
that  the  act  of  the  defendant  must  have  been  without  the  woman's 
•consent,  and  there  must  have  been  sufficient  force  used  to  accom- 
plish his  purpose;  that  the  jury  must  be  satisfied  that  there  was 
no  consent  during  any  part  of  the  act,  and  thai  the  degree  of 
resistance  was  frequently  an  essential  matter  tor  them  to  consider 
in  determining  whether  the  alleged  want  of  consent  was  honest 
and  real:  hut  that  there  was  no  rule  of  law  requiring  a  jury  to  In- 
satisfied    that    the  woman,    according    to    their    measure   of    her 


814  LAW    OF    EVIDENCE    IN    CKIMINAL    CASES. 

strength,  used  all  the  physical  force  in  opposition  of  which  she 
was  capable;  and  this  charge  was  held  by  the  supreme  court  to  be 
appropriate  and  correct.  Likewise  in  State  v.  Shields,  45  Conn. 
256,  the  supreme  court  of  Connecticut  approved  a  charge  that 
there  was  no  rule  of  law  that  there  could  be  no  rape  unless  the 
woman  manifested  the  utmost  reluctance  and  made  the  utmost 
resistance,  but  that  the  jury  must  be  satisfied  that  there  was  no 
consent  during  any  part  of  the  act,  and  that  the  degree  of  resist- 
ance was  an  essential  matter  for  them  to  consider  in  determining 
whether  there  was  an  honest  and  real  want  of  consent. 

Mr.  Bishop  in  his  work  on  Criminal  Law  (vol.  2,  §  1122)  says 
that  it  is  plain  that  in  the  ordinary  case  where  a  woman  is  awake, 
of  mature  years,  of  sound  mind  and  not  in  fear,  a  failure  to  oppose 
the  carnal  act  is  consent,  and  though  she  objects  verbally,  if  she 
makes  no  outcry  and  no  resistance,  she  by  her  conduct  consents, 
and  the  carnal  act  is  not  rape  in  the  man;  that  the  will  of  the 
woman  must  oppose  the  act,  and  that  any  intimation  favoring  it 
is  fatal  lo  the  prosecution.  He,  however,  disapproves  the  doc- 
trine as  to  resistance  affirmed  in  People  v.  Dohrhig,  59  N.  Y.  374, 
17  Am.  Rep.  349,  and  says  that  the  text  of  the  law,  and  the  bet- 
ter judicial  doctrines  require  only  that  the  case  shall  be  one  in 
which  the  woman  did  not  consent;  her  resistance  however,  must 
not  be  a  mere  pretense,  but  in  good  faith.  The  text  of  the  law 
referred  to  by  him  is  the  Statute  of  Westminster  II.  (13th  ed.  1) 
chap.  34,  A.  D.  1285,  which  he  gives  in  §  1111,  as  follows:  "If  a 
man  from  henceforth  do  ravish  a  woman,  married,  maid,  or  other, 
where  she  did  not  consent,  neither  before  nor  after,  he  shall  have 
judgment  of  life  and  of  member.  And  likewise  where  a  man 
ravisheth  a  woman,  married,  lady,  damsel,  or  other,  with  force, 
although  she  consent  after,  he  shall  have  judgment  as  before  is 
said  (that  is  of  life  and  member)  if  he  be  attainted  at  the  king's 
suit,  and  there  the  king  shall  have  the  suit."  Ilollis  v.  State,  27 
Fla.  387. 

If  consent  in  any  degree  at  any  time  of  the  occasion  be  yielded 
by  the  female,  the  crime  is  not  consummated;  but  the  yielding  to 
overpowering  force  may  be  submission  and  not  consent.  Peg.  v. 
Fletcher,  Bell,  C.  C.  63,  8  Cox,  C.  C.  131,  5  Jur.  1>.  S.  179. 
The  offense  requires  of  her  the  utmost  reluctance,  and  the 
utmost  resistance  on  her  part.  People  v.  Morrison,  1  Bark. 
Crim.  Rep.  625;  People  v.  Quln,  50  Barb.  128;  People  v.  Dohr- 


RAPE.  815 

ing,  59  K  Y.  374,  17  Am.  Eep.  349.  This  rule  is  to  be  uni- 
formly observed  in  cases  of  this  character.  But  what  is  such 
resistance,  has  relation  to  the  circumstances  attending  the  trans- 
action. If  she  was  overpowered  by  force,  and  was  unable,  for 
want  of  strength,  to  actively  resist  any  longer,  or  if  such  resist- 
ance was  absolutely  useless,  the  crime  may  have  been  committed. 
Beg.  v.  Ilallet,  9  Car.  &  P.  748;  Don  Moran  v.  People,  25  Mich. 
356,  12  Am.  Eep.  283;  Whittaker  v.  State,  50  Wis.  518,  36  Am. 
Rep.  856. 

To  support  the  charge  of  the  crime  in  question,  assuming  that 
the  prosecutrix  was  conscious  and  had  possession  of  her  mental 
and  physicial  powers,  it  was  necessary  that  she  should  resist  to  the 
extent  of  her  ability,  and  be  overcome  by  the  physical  force  of 
the  defendant,  unless  she  was  by  threats  terrified  into  a  submission,, 
or  was  in  a  place  and  so  situated  that  resistance  would  have  been 
useless.  People  v.  Dohrlng,  59  K  Y.  374,  17  Am.  Eep.  349; 
Oleson  v.  State,  11  Neb.  276,  38  Am.  Eep.  366. 

In  such  cases,  although  the  woman  never  said  "yes,"  nay  more, 
although  she  constantly  said  "no,"  and  kept  up  a  decent  show  of 
resistance  to  the  last,  it  may  still  be  that  she  more  than  half  con- 
sented to  the  ravishment.  Her  negative  may  have  been  so  irreso- 
lute and  undecided,  and  she  may  have  made  such  feeble  fight  as 
was  calculated  to  encourage,  rather  than  repel  the  attack.  And 
yet,  a  sense  of  shame,  arising  either  from  an  apprehension  of  the 
consequences  which  may  follow  the  illicit  connection,  or  from  the 
fact  that  the  matter  has  already  been  known  to  others,  may  stimu- 
late the  woman  to  call  that  a  rape,  which  was  in  truth  a  sin  of  a 
much  less  odious  character.  And  when  once  she  has  given  the 
transaction  a  name,  she  has  no  alternative  but  to  confess  herself 
false,  as  well  as  guilty,  or  to  go  into  court  and  arraign  the  sup- 
posed offender.  And  then,  as  there  was  no  express  consent,  she 
is  enabled  to  swear  to  the  force  without  any  such  great  stretch  <>| 
conscience  as  would  be  necessary  where  the  whole  story  was  a 
tissue  of  falsehood  from  beginning  to  end.  ( !ases  of  this  charac- 
ter do  not  call  for  any  relaxation  of  the  rules  of  evidence  for  the 
purpose  of  supporting  the  accusation.  On  the  contrary,  courts 
and  juries  cannot  well  be  too  cautious  in  scrutinizing  the  testi- 
mony of  the  complaining  witness,  and  guarding  themselves 
against  the  influence  of  those  indignant  feelings  which  are  so 
naturally  excited  by  the  enormity  of  the  alleged  offense.  Tay 
lory.  State,!!!  Ind.  279. 


816  LAW    OF    EVIDENCE    IN    CRIMINAL*  CASES. 

§  519.  What  Must  he  Shown. — "Sexual  penetration"  can 
mean  nothing  but  the  piercing  into  the  distinctive  organ  of  sex. 
Commissioners  on  Revision  [ed.  of  18G5],  §  321;  N.  Y.  Penal 
Code,  §  280;  2  Rev.  Stat.  735.  Where  there  is  absolutely  no  proof 
of  "sexual  penetration" — of  a  rape  accomplished,  at  most  there  is 
only  proof  of  an  attempt.  Reg.  v.  McRue,  8  Car.  &  P.  641; 
Guy,  Forensic  Medicine  [1st  Am.  ed.],  with  notes  by  Lee,  65; 
Roscoe,  Crim.  Ev.  [10th  ed.]  902;  Beck,  Medical  Jurispru- 
dence, 53. 

In  the  United  States  proof  of  the  slightest  penetration  without' 
emission  has  always  been  regarded  as  sufficient.  Stats  v.  Har- 
grove, 65  N.  C.  4:66;  Waller  v.  State,  40  Ala.  325;  Com.  v. 
Thomas,  1  Ya.  Cas.  307;  State  v.  Sullivan,  Add.  Rep.  143;  1 
Swin.  Jud.  Reg.  98;  1  Hale,  P.  C.  628  and  note;  Taylor,  Medical 
Jurisprudence  (7th  Am.  ed.)  701;  Ogston,  Lect.  Medical  Jurispru- 
dence, 90;  Beck,  Medical  Jurisprudence,  229,  223.  The  essence 
of  the  crime  is  not  the  begetting  of  a  child,  nor  the  physical  injury 
inflicted,  but  the  violence  done  to  the  feelings  and  person  of  the 
sufferer  and  to  her  sense  of  honor  and  virtue.  People  v.  Sulli- 
van, supra,  1  Barb.  Crim.  L.  [3d  ed.]  77;  1  Swin.  Jud.  Reg.  98. 
No  form  of  words  is  necessary  to  prove  penetration,  the  proof, 
therefore,  can  be  inferred  from  circumstances  apart  from  the  state- 
ment of  the  party  injured.  People  v.  Crowley,  102  N.  Y.  234; 
Whart,  Am.  Crim.  L.  §  555. 

Nothing  is  better  established  than  that  the  prosecutrix,  in  trials 
of  this  nature,  may  testify  as  to  what  she  did  or  said  after  the 
commission  of  the  offense.  In  the  language  of  Sir  William  Ev- 
ans, 2  Pothier,  Ev.  289  : 

"Upon  accusations  for  rape,  for  the  forbearance  to  mention  the 
circumstances  for  a  considerable  length  of  time  is,  in  itself,  a  rea- 
son for  imputing  fabrication,  unless  repelled  by  other  considera- 
tions, the  disclosure  made  upon  the  first  proper  opportunity  after 
iN  commission,  and  the  apparent  state  of  mind  of  the  party  who 
has  suffered  the  injury,  are  always  regarded  as  very  material;  and 
the  evidence  of  them  is  certainly  admitted  without  objection." 

The  text-ln  >(»ks  speak  thus  :  "It  must  appear  that  the  offense 
was  committed  without  the  consent  of  the  woman,  but  it  is  no 
excuse  that  she  yielded  at  last  to  the  violence,  if  her  consent  was 
forced  from  her  by  fear  of  death,  or  by  duress."  Roscoe,  Crim. 
Ev.  (6th  London  &  6th  Am.  ed.)  806;  1  East,  P.  C.  p.  444,  §7. 


RAPE.  817 

It  is  an  extreme  which  they  put,  that  shall  be  no  excuse.  So 
in  Viner  it  is  laid  down,  that  a  woman  cannot  be  ravished  by  one 
man  without  some  extraordinary  circumstances  of  force.  1 8  Yin. 
Abr.  Rape,  p.  155,  pi.  11.  In  People  v.  Abbot,  19  Wend.  192, 
Cowen,  ./.,  says :  "Any  fact  tending  to  the  inference  that  there 
was  not  the  utmost  reluctance  and  the  utmost  resistance,  is  always 
received."  Why,  if  the  jury  are  not  to  inquire  whether  there 
were  the  utmost  reluctance  and  the  utmost  resistance  ?  This  say- 
ing lias  been  cited  with  approval  in  more  than  one  instance. 
People  v.  Morrison,  1  Park.  Crim.  Rep.  625;  People  v.  Quin,  50 
Barb.  128;  Reynolds  v.  People,  41  How.  Pr.  179. 

Certainly,  if  a  female,  apprehending  the  purpose  of  a  man  to 
be  that  of  having  carnal  knowledge  of  her  person,  and  remaining 
conscious  does  not  use  all  her  own  powers  of  resistance  and  de- 
fense, and  all  her  powers  of  calling  others  to  her  aid,  and  does 
yield  before  being  overcome  by  greater  force,  or  by  fear,  or  being 
surrounded  by  hostile  numbers,  a  jury  may  infer  that,  at  some 
time  in  the  course  of  the  act,  it  was  not  against  her  will. 

Our  statutes  provide  that :  '"In  prosecutions  for  the  offense  of 
rape,  proof  of  penetration  shall  bo  sufficient  evidence  of  the  com- 
mission of  the  offense."  Under  this  statute,  however  it  may  have 
been  at  common  law.  the  slightest  penetration  of  the  genital  or- 
gan of  the  male  into  that  of  the  female  is  sufficient,  other  ele- 
ments  of  the  crime  being  present,  to  establish  guilt.  Brauer  v. 
State,  25  Wis.  413;  Stat<  v.  Tarr,  28  Iowa.  397;  Bishop,  Statutory 
Crimes.  §  488. 

In  commenting  upon  some  of  the  later  case?  the  authors  of  a 
recent  work  on  medical  jurisprudence  justly  say:  "In  our  opin- 
ion this  is  not  only  good  law,  but  common  sense.  That  a  scoun- 
drel who  attempts  the  chastity  of  a  child  or  a  young  girl  should 
escape  punishment  merely  because  her  youth,  or  the  imperfect 
development  or  narrowness  of  the  parts  prevent  his  fully  consum- 
mating the  crime,  appears  to  us  as  undesirable  as  it  would  be 
unjust."  Woodman  A:  Tidy.  Forensic  Medicine  A:  Toxicology, 
640. 

'•The  jury,"  says  Mr.  Bishop,  "may  infer  the  penetration  from 
circumstances,  without  direct  proof."  Bishop,  Statutory  Crimes, 
8  488.  Discussing  the  same  question,  the  supreme  courl  of  Lowa 
said:  "Nor  is  the  prosecution  bound  to  .-how  the  fad  of  actual 
penetration  by  the  prosecutrix  herself."  Stab  v.  Tarr,  supra. 
52 


6 


818  LAW    OF    EVIDENCE    IN    CRIMINAL    CASES. 

§  520.  Reputation  of  the  Prosecutrix  for  Chastity. — One 

of  the  most  serious  contentions  that  vex  the  appellate  tribunal  in 
cases  of  this  character,  arises  from  the  attempt  to  prove  the  gen- 
eral reputation  of  the  prosecutrix  for  chastity,  before  her  charac- 
ter has  been  attacked.  The  general  rule  undoubtedly  is,  that 
evidence  to  sustain  a  witness  whose  character  or  credibility  has 
not  been  attacked  by  the  opposite  party  is  inadmissible,  the  char- 
acter being  no  part  of  the  res  gestm;  but  the  strenuous  argument 
in  these  cases  is  to  the  effect,  that  there  is  a  well  recognized  ex- 
ception to  this  rule  in  cases  of  rape  or  assault  with  intent  to  com- 
mit rape.  In  such  cases,  the  general  character  of  the  prosecutrix 
for  chastity  being  involved,  it  may  be  sustained,  whether  attacked 
or  not. 

Upon  this  precise  point  the  authorities  are  few,  and  they  are 
not  agreed.  In  State  v.  De  Wolf,  S  Conn.  93,  20  Am.  Dec.  90,. 
evidence  to  prove  the  general  character  of  the  prosecutrix  for 
truth  to  be  good,  though  not  impeached,  was  admitted  by  the 
trial  court,  and  it  was  said  by  the  appellate  court  that  it  would 
not  be  going  too  far,  perhaps,  to  say  that  the  general  character  of 
the  witness,  who  is  the  victim  of  the  outrage,  in  prosecutions  for 
rape  may  always  be  shown.  The  case,  however,  was  disposed  of 
on  other  grounds,  and  the  point  was  not  decided. 

In  Turney  v.  State,  S  Smedes  &  M.  101,  decided  in  1847,. 
Thacker,  J.,  from  whose  opinion  on  this  point  there  seems  to  have 
been  no  dissent,  said :  "The  party  ravished  is  a  competent  wit- 
ness to  prove  the  fact,  but  the  credibility  of  her  testimony  must 
be  left  to  the  jury.  It  is  legitimate  to  support  her  credibility  by 
evidence  of  her  good  fame,  or  to  attack  it  by  evidence  of  her  evil 
fame."  "Such  evidence,"  he  added  "tends  to  show,  that  the  con- 
nection with  the  woman  was  had  against  or  with  her  consent." 
This  was  all  that  was  said  upon  the  point,  and  no  reference  wa& 
made  to  the  case  of  People  v.  Hulse,  presently  to  be  mentioned. 
The  only  authority  referred  to  is  4  Bl.  Com.  213,  where  the  author 
adopting  the  language  of  Sir  Matthew  Hale  in  his  Pleas  of  the 
Crown,  as  do  most  of  the  text-writers  on  the  subject,  said  :  "The 
party  ravished  may  give  evidence  upon  oath,  and  is  in  law  a  com- 
petent witness;  but  the  credibility  of  her  testimony,  and  how  far 
forth  she  is  to  be  believed,  must  be  left  to  the  jury  upon  the  cir- 
cumstances of  fact  that  concur  in  that  testimony.  For  instance, 
if  the  witness  be  of  good  fame,  if  she  presently   discovered  the 


RAPE.  819 

offense,  and  made  search  for  the  offender;  if  the  party  accused 
fled  for  it;  these  and  the  like  are  concurring  circumstances  which 
give  greater  probability  to  her  evidence."  See  also  East,  P.  C. 
445;  1  Russell,  Crimes,  502;  2  Whart.  Am.  Crim.  L.  (7th  ed.) 
§  1149;  3  Greenl.  Ev.  §  212. 

On  the  other  hand,  in  People  v.  Iluhe,  3  Hill,  309,  decided  in 
1842,  the  supreme  court  of  New  York,  composed  of  Nelson,  Ch. 
J.,  and  Bronson  and  Cowen,  <JJ.,  in  an  able  opinion,  declared  that 
there  was  no  authority  for  making  the  case  of  a  witness  swearing 
to  a  rape  an  exception  to  the  general  rule  of  evidence  in  relation 
to  proof  of  character,  and  that  as  a  question  of  principle  no  such 
exception  should  be  made.  Such  evidence,  it  was  thought,  is 
calculated  to  draw  off  the  attention  of  the  jury  from  the  true  point 
in  controversy,  and  to  cause  them  to  find  a  verdict  of  guilty  more 
upon  the  good  character  of  the  prosecutrix,  than  upon  a  rational 
conviction  of  the  defendant's  guilt.  And  referring  to  the  lan- 
guage of  Lord  Hale,  above  mentioned,  it  was  denied  that  that 
judge  meant  to  say  that  the  good  character  of  the  prosecutrix 
may  be  shown  before  any  question  of  character  or  "good  fame" 
has  been  raised  by  the  defense.  "No  one,"  it  was  said,  "can  read 
what  Lord  Hale  has  said  in  relation  to  prosecutions  of  this  kind, 
without  being  satisfied,  that  greatly  as  he  abhorred  the  crime  of 
rape,  he  was  very  far  from  thinking  that  any  unusual  weight 
should  be  thrown  into  the  scale  against  the  accused.  On  the  con- 
trary, he  regarded  it  as  a  case  calling  for  unusual  caution  on  the 
part  of  the  judge  and  the  jury,  and  where  the  testimony  of  the 
complaining  witness  should  be  received  with  more  than  ordinary 
doubt  and  suspicion."  And  the  language  of  Lord  Hale,  also  re- 
ferred to  by  Blackstone,  was  quoted  at  length  to  sustain  this  con- 
clusion. 

This  view  of  the  law.  which  we  consider  the  true  one.  is  adopted 
by  a  philosophical  writer,  who,  in  treating  of  the  evidence  in  a 
prosecution  for  rape,  says  that  there  are  cases,  perhaps  exceptional 
in  their  circumstances,  wherein  sustaining  evidence  of  the  good 
character  of  the  prosecutrix  lias  been  received  when  she  was  not. 
attacked,  but  that  the  general  and  better  doctrine  admits  it  only 
to  repel  an  attack.  And  hecites  the  cases  above  mentioned,  which 
are  the  only  ones  to  which  our  attention  lias  been  called.  Cole- 
man v.  Com.  84  \'a.  1;  2  Bishop,  Crim.  Proc.  §  964. 

The  authority  of  Lord  Hale  has  been  occasionally  invoked  to 


820  LAW  OF    EVIDENCE    IN    CRIMINAL   CASES. 

show  that  the  case  of  a  woman  swearing  to  a  rape,  forms  an  ex- 
ception to  the  general  rule,  and  that  evidence  may  always  be  given 
in  support  of  her  general  character.  It  is  true  that  Hale  men- 
tions the  "good  fame"  of  the  witness  as  one  of  the  "concurring 
evidences  to  give  greater  probability  to  her  testimony;"  but  he 
nowhere  intimates  that  he  may  call  compurgators  before  the  ques- 
tion of  character  or  "good  fame"  has  been  raised  on  the  part  of 
the  defense.  1  Hale,  P.  C.  (ed.  1778)  633.  And  although  what 
is  here  said  by  Hale  has  been  repeated  by  most  of  the  elementary 
writers  upon  crimes  and  criminal  evidence  since  his  day,  not  one 
of  them  has  mentioned  the  case  of  a  woman  swearing  to  a  rape  as 
an  exception  to  the  general  rule  of  evidence  which  we  have  been 
considering.  4  Bl.  Com.  213;  1  East,  P.  C.  445;  3  Chitty,  Crim. 
L.  812;  3  Stark.  Ev.  1267;  Roscoe,  Crim.  Ev.  710;  Archb.  Crim. 
Pr.  &  PI.  453.  If  there  be  any  such  exception,  we  should  cer- 
tainly be  able  to  rind  it  laid  down  in  some  book  of  authority. 
Mr.  Phillips,  although  he  had  no  occasion  to  controvert  a  propo- 
sition of  which  he  had  never  heard,  has  virtually  denied  the  ex- 
istence of  any  such  exception.  He  says,  if  on  cross-examination 
she  admit  her  own  misconduct  in  some  earlier  transactions,  it 
would  be  proper  on  re-examination,  to  inquire  into  her  conduct 
subsequent  to  such  transactions,  for  the  purpose  of  restoring  her 
credit.  And  then,  on  the  authority  of  Rex  v.  Clarke,  2  Stark. 
241,  he  adds:  other  witnesses  may  also  be  called,  to  show  that  she 
has  since  retrieved  her  character.  1  Phil.  Ev.  (ed.  1839)  176. 
He  puts  the  right  to  call  sustaining  witnesses  on  the  ground  that 
her  character  had  been  attacked. 

In  many  of  the  states  the  statute,  instead  of  reading  "of  good 
repute,"  provides  that  the  female  shall  be  "of  previous  chaste 
character."  Under  such  a  statute  the  character  of  the  prosecu- 
trix may  be  impeached  by  proof  of  specific  acts  of  lewdness. 
Ki  nyon  v.  People,  26  N.  Y.  203,  84  Am.  Dec  177;  Carpenter  v. 
People,  8  Barb.  603;  Polk  v.  State,  40  Ark.  482,  48  Am.  Rep.  17; 
People  v.  Brewer,  27  Mich.  134;  People  v.  Clark,  33  Mich.  112; 
State  v.  Bryan,  34  Kan.  63. 

I' pun  the  issue  the  authorities  concur  in  holding  that  evi- 
dence showing  that  the  character  of  the  prosecutrix  for  chas- 
tity was  bad,  is  competent,  and  for  the  reason  that  it  is  more 
probable  that  an  unchaste  woman  assented  to  such  intercourse 
than  one  of  strict  virtue.     The  evidence  is  received  upon  this 


RAPE.  821 

ground,  and  not  for  the  purpose  of  impeaching  the  general  credi- 
bility of  the  witness.  Evidence  showing  that  the  prosecutrix  has 
on  a  previous  occasion  had  connection  with  the  accused  is  com- 
petent, and  this  for  the  reason  that  having  done  this  shows  a 
probability  that  she  did  not  resist  but  consented  to  that  charge  in 
the  indictment.  In  Rex  v.  Barker,  3  Car.  &  P.  5S9,  it  was  held 
that  the  prosecutrix  might  be  asked,  with  a  view  to  contradict 
her,  whether  she  was  not  on  a  specified  day  after  the  alleged 
offense  walking  in  High  street,  with  a  woman  Oxford,  looking  out 
for  men,  and  the  further  question  whether  upon  another  specified 
day  after  the  alleged  offense  she  was  not  walking  in  High  street 
with  a  woman  reputed  to  be  a  common  prostitute.  This  evidence 
was  competent,  not  for  the  purpose  of  impeaching  the  general 
credibility  of  the  witness,  but  proper  for  the  consideration  of  the 
jury  upon  the  question  whether  she  assented  to  the  intercourse. 
It  was  competent  for  him  to  prove,  by  any  one  knowing  the  fact, 
that  the  prosecutrix  was  in  the  habit  of  receiving  men  at  her 
dwelling  for  promiscuous  intercourse  with  them,  and  the  weight 
of  such  testimony  was  in  no  respect  impaired  by  the  further  fact 
that  the  men  so  received  took  liquor  with  them  on  these  occasions, 
of  which  they  and  she  partook  to  great  excess.  The  testimony 
offered,  if  true,  would  have  shown  the  complainant  to  be  a  com- 
mon prostitute;  proof  more  satisfactory  than  that  of  a  bad  general 
reputation  for  chastity.  It  was  an  offer  to  show  by  direct  evi- 
dence not  only  this,  but  that  the  complainant  was  a  common 
prostitute  and  in  the  habit  of  plying  her  vocation  at  the  place 
where  she  dwelt.  Whether  evidence  of  particular  acts  of 
criminality  by  the  prosecutrix  is  competent,  is  a  question  upon 
which  the  authorities  differ,  but  one  not  necessary  to  determine 
in  all  cases.  In  People  v.  Allot,  19  Wend.  192,  such  proof  was 
held  to  be  admissible.  In  People  v.  Jackson,  3  Park.  Crim.  Rep. 
391,  it  was  held  incompetent.  The  authorities  are  all  cited  and 
ably  examined  in  the  opinions  in  these  cases  by  Cowen,  J.,  in  the 
former,  and  by  S.  B.  Strong,  J.,  in  the  latter.  See  also  Woods 
v.  People,  55  N.  Y.  515,  li  Am.  Rep.  309;  Roscoe,  Crim.  Ev. 
810. 

Note. — The  exhaustive  opinion  of  Judge  Cowen  leaves  nothing  to  be  said 
upon  the  subject  of  character,  when  brought  in  question  by  the  trial  of  a  crime 
so  heinous  and  offensive,  as  that  under  review.  His  honor  says:  "The 
prosecutrix  is  usually,  as  here,  the  sole  witness  to  the  principal  facts,  and  the 
accused  is  put  to  rely  for  his  defense  on  circumstantial  evidence.     Any  fact 


822  LAW    OF    EVIDENCE    IN    CRIMINAL    CASES. 

A  person's  character  for  chastity,  when  it  is  relevant,  is  not 
shielded  from  inquiry.     It  is  a  disagreeable  subject  of  investiga- 

tending  to  the  inference  that  there  was  not  the  utmost  reluctance  and  the 
utmost  resistance,  is  always  received.  That  there  was  not  an  immediate  dis. 
closure,  that  there  was  no  outcry,  though  aid  was  at  hand  and  that  known  to 
the  prosecutrix,  that  there  are  no  indications  of  violence  to  the  person,  are  put 
as  among  the  circumstances  of  defense;  not  as  conclusive,  but  as  throwing  dis- 
trust upon  the  assumption  that  there  was  a  real  absence  of  assent.  1  Hale,  P. 
C.  633.  A  mixed  case  will  not  do;  the  connection  must  be  absolutely  against 
the  will;  and  are  we  to  be  told  that  previous  prostitution  shall  not  make  one 
among  those  circumstances  which  raises  a  doubt  of  assent  ? — that  the 
triers  should  be  advised  to  make  no  distinction  in  their  minds  between  the 
virgin  and  a  tenant  of  the  stew  ? — between  one  who  would  prefer  death  to 
pollution,  and  another  who,  incited  by  lust  and  lucre,  daily  offers  her  person 
to  the  indiscriminate  embraces  of  the  other  sex  ?  And  how  is  the  latter  case  to 
be  made  out  ?  How  more  directly  and  satisfactorily  than  by  an  examination 
of  the  prosecutrix  herself  ?  I  speak  not  now  of  her  privilege,  though  the  ques- 
tion being  relevant,  I  do  not  believe  there  is  either  principle  or  authority  which 
would  allow  it  to  her.  1  Phil.  Ev.  (7th  ed.)  279;  Roberts  v.  Allalt,  1  Mood.  & 
M.  192.  But  she  did  not  claim  any  privilege.  The  question  was  overruled  on 
another  ground,  whereas  it  may  always  be  asked  even  in  a  case  of  the  plainest 
privilege.  Treat  v.  Browning,  4  Conn.  408,  10  Am.  Dec.  156;  Thomas  v.  New- 
ton, 2  Car.  &  P.  G06;  Southard  v.  Rexford,  6  Cow.  234. 

On  a  question  of  scienter  you  may  show  other  acts,  as  in  passing  counterfeit 
money  or  bills.  Why  ?  Because  in  the  practiced  vender  of  bad  coin  or  bad 
bills  we  more  readily  infer  a  guilty  knowledge  than  in  the  novice.  1  Phil.  Ev. 
(7th  ed.)  179,  and  cases  cited.  And  will  you  not  more  readily  infer  assent  in 
the  practiced  Messalina,  in  loose  attire,  than  in  the  reserved  and  virtuous 
Lucretia  ?  Both  knowledge  and  assent  are  affections  of  the  mind,  and  the 
mode  of  proving  both,  rests  on  the  same  principle  in  the  philosophy  of  evi- 
dence. 

I  am  fully  aware  of  the  two  cases  of  Rex  v.  Hodgson,  Russ.  &  R.  211,  and 
Rex  v.  Clarke,  2  Stark.  241,  in  which  it  was  held  that  you  shall  not  be  per- 
mitted to  inquire  of  the  prosecutrix's  connection  with  other  men.  It  is  with  a 
view  to  these  cases  that  I  have  thought  it  my  duty  to  consider  the  question  of 
a  priori,  and  I  must  say  that  they  appear  to  me  entirely  anomalous,  not  only 
when  compared  with  the  cases  in  respect  to  circumstantial  evidence  generally, 
but  with  adjudications  in  respect  to  evidence  receivable  on  trials  for  this  very 
crime.  It  seems,  in  the  first  place,  to  be  perfectly  agreed  that  you  may  prove 
the  prosecutrix  to  be  in  fact  (not  merely  by  general  reputation,  but  in  fact)  a 
common  prostitute;  because,  say  Mr.  East  and  Mr.  Roscoe,  that  is  a  proper 
circumstance  to  be  submitted  to  the  jury.  1  East,  Crown  L.  444,  445;  Roscoe, 
Crim.  Ev.  708.  It  has  been  repeatedly  adjudged  that,  in  the  same  view,  you 
may  also  show  a  previous  voluntary  connection  between  the  prosecutrix  and 
the  prisoner.  Rex  v.  Aspinwall,  cited  in  2  Stark.  Ev.  (7th  Am.  ed.)  951;  Rex 
v.  Martin,  6  Car.  &  P.  562.  Why  is  this  ?  Because  there  is  not  so  much 
probability  that  a  common  prostitute  or  the  prisoner's  concubine  would  with- 
hold her  assent,  as  one  less  depraved ;  and  may  I  not  ask,  does  not  the  same 
probable  distinction  arise  between  one  who  has  already  submitted  herself  to  the 


KAPE. 


823 


tion,  but  the  law  makes  no  discrimination  between  subjects  that 
are  agreeable  and  those  that  are  disagreeable.      Wood  v.  Gale,  10 

lewd  embraces  of  another,  and  the  coy  and  modest  female,  severely  chaste  and 
instinctively  shuddering  at  the  thought  of  impurity  ?  Shall  I  be  answered  that 
both  are  equally  under  the  protection  of  the  law  ?  That  I  admit,  and  so  are 
the  common  prostitute  and  the  concubine.  If  either  have,  in  truth,  been 
feloniously  ravished,  the  punishment  is  the  same,  but  the  proof  is  quite  differ- 
ent. It  reauires  that  stronger  evidence  be  added  to  the  oath  of  the  prosecutrix, 
in  one  case  than  in  the  other.  Shall  I  be  answered  that  an  isolated  instance  of 
criminal  connection  does  not  make  a  common  prostitute  ?  I  answer,  yes;  it 
only  makes  a  prostitute,  and  I  admit  introduces  a  circumstance  into  the  case  of 
less  amount;  but  the  question  is  not  whether  it  be  of  more  or  less  persuasive 
force;  it  is  one  of  competency;  in  other  words,  whether  it  be  of  any  force 
at  all. 

The  decisions  of  the  courts  of  Westminister  Hall  are  certainly  very  high  evi- 
dence of  the  law.  In  most  cases  I  agree  that  we  ought  to  regard  them  as  con- 
clusive; but  no  court  can  overrule  the  law  of  human  nature,  which  declares 
that  one  who  has  already  started  on  the  road  of  prostitution  would  be  less 
reluctant  to  pursue  her  way  than  another  who  yet  remains  at  her  home  of 
innocence  and  looks  upon  such  a  career  with  horror.  I  have  had  long  occasion 
to  know  and  to  consider  much,  the  two  cases  cited  as  adverse  to  the  reception 
of  this  evidence;  and  I  never  yet  could  bring  myself  to  doubt  that  circum- 
stances much  more  remote  and  of  less  influence  are  constantly  received  on  the 
very  best  authority.  Those  cases  are  anomalous  in  more  than  one  respect. 
While  they  reject  evidence  of  the  fact,  they  receive  evidence  of  reputation  of 
•the  fact,  or  mere  hearsay.  They  seem  to  suppose  that  the  testimony  was  pro- 
posed to  shake  the  general  credibility  of  the  witness,  as  if  it  went  to  truth 
and  veracity.  That  is  not  so.  It  goes  to  her  credibility  in  the  particular 
matter,  to  a  circumstance  relevant  to  the  case  in  hand,  from  which  the  jury  are 
asked  to  say  she  did  consent;  and  it  ma}'  be  proved  by  the  prosecutrix,  or  if 
she  deny  it,  by  others.  It  is  most  strange  that  a  reputation  of  a  want  of 
chastity  should  be  preferred  in  evidence  to  direct  proof.  No  reason  is  given 
for  such  a  distinction  by  the  court;  but  the  counsel  in  Bex  v.  Hodgson,  Russ.  & 
It.  211,  did  say,  that  general  reputation  alone  was  to  be  received,  because  it  was 
not  to  be  presumed  the  prosecution  would  come  prepared  to  meet  evidence  of 
the  particular  fact.  Such  a  reason  would  go  to  show  that  every  circumstance 
in  a  chain  must  be  shown  by  reputation  instead  of  ocular  proof.  I  am  unwill- 
ing to  deprive  prisoners  of  any  evidence  sanctioned  by  authority  in  this  kind  of 
prosecution.  Their  case  is  often  hard  enough.  1  Hale,  P.  C.  635,  636.  But  I 
never  yet  could  see  why  reputation  should  be  received  upon  any  principle 
peculiar  to  such  a  case.  It  cannot  be,  as  supposed  in  Bex  v.  Clarke,  2  Stark. 
241,  that  a  woman's  character  is  in  issue,  in  any  other  sense  than  that  of  every 
witness,  who  may  be  impeached  as  generally  unworthy  of  credit.  The  books 
arc  certainly  strong  and  uncontradicted  that  on  trying  this  offense  her  character 
as  a  common  strumpet  may  be  proved  for  such  a  purpose  (Sex  v.  Barker,  3  Car. 
&  P.  589)  though  it  is  not  clearly  held  to  be  receivable  against  a  witness  in 
other  prosecutions  as  an  impeachment  of  veracity.  There  are  two  decisions  in 
Massachusetts  on  the  question,  which  conflict;  the  first  holding  that  it  may, 
the  second  that  it  shall  not  be  received.     Com.  v.  Murphy,  14  Mass.  388;    Com. 


824  LAW    OF    EVIDENCE    IN    CRIMINAL    CASES. 

N.  H.  247,  34  Am.  Dec.  150.  Sexual  crimes  are  not  excepted,, 
as  a  peculiar  class,  from  the  operation  of  the  general  rule  that 
admits  relevant  evidence.  On  an  indictment  for  adultery,  evi- 
dence of  previous  improper  familiarities  is  competent.  State  v. 
Wallace,  9  N.  H.  515;  State  v.  Marvin,  35  N.  II.  22;  Com.  v. 
Merriam,  14  Pick.  518,  25  Am.  Dec.  420;  Com.  v.  Zahey,  14 
Gray,  91.  In  Com.  v.  Norton,  2  Gray,  354,  and  Com.  v.  Thrasher, 
11  Gray,  450,  it  was  held  that  although  improper  familiarities 
were  competent,  proof  of  actual  adultery  (other  than  that  charged) 
committed  by  the  same  parties  with  each  other  was  incompetent; 
but  in  Thayer  v.  Thayer,  101  Mass.  Ill,  113,  114,  100  Am.  Dec. 

v.  Moore,  3  Pick.  194.  Without  expressing  an  opinion  whether  it  may  com- 
monly be  used  even  as  an  item  in  the  estimate  of  general  credibility,  I  certainly 
do  not  feel  clear  that  it  should  be  repudiated  in  respect  to  the  prosecutrix, 
where  the  trial  is  for  a  rape.  The  strong  balance  of  the  books  is,  that  you  are 
never  confined  in  such  inquiry  to  general  character  for  truth  and  veracity 
merely,  but  may  ask  as  to  the  general  moral  character,  and  stop  there.  I  speak 
both  of  English  and  American  cases,  which  are  numerous,  and  all  jf  which  I 
think  I  have  examined.  I  do  not  now  remember  one  which  holds  that  you 
shall  be  exactly  tied  up  in  your  question  to  character  for  truth  and  veracity. 
Jackson  v.  Lewis,  13  Johns.  504,  says  that  this  is  the  principal  inquiry,  and  see 
Oass  v.  Stinson,  2  Sumn.  610,  and  hold  that  you  shall  not,  with  a  view  to  im- 
peach general  credit,  show  the  particular  fact  that  the  witness  was  a  prostitute. 
The  same  thing  was  held  in  the  late  case  of  Bakeman  v.  Rose,  14  Wend.  105. 
That  is  all  which  the  case  decides,  viz:  that  you  shall  not  prove  particulars. 
It  does  not  hold  that  the  reputation  of  being  a  public  prostitute  shall  not  enter 
into  an  impeaching  witnesses'  estimate  of  general  character.  There  is  a  dis- 
crepancy between  the  statement  of  the  case  and  opinion  there,  which  might 
mislead.  The  question  in  the  former  appears  to  be  one  of  reputation.  The 
abstract  of  the  case  and  the  opinion  of  the  late  Chief  Justice  both  regard  the 
question  as  the  same  with  that  in  Jackson  v.  Lewis,  supra.  I  will  merely  add  a 
case  or  two  more.  In  People  v.  Mather,  4  Wend.  257,  21  Am.  Dec.  122,  Marcy, 
J.,  appears  to  prove  the  English  form  of  putting  this  question  as  it  has  long 
stood  in  Philips,  Starkie  and  Peake,  etc.,  and  as  it  has  been,  I  presume,  con- 
stantly put  at  the  English  Nisi  Prius.  In  the  late  case  of  Bex  v.  Bispham,  4 
Car.  &  P.  392,  before  Garrow,  B.,  he  put  the  question  in  this  form:  "You 
have  known  him  three  years.  Have  you  such  a  knowledge  of  his  general  char- 
acter and  conduct,  that  you  can  conscientiously  say  that  from  what  you  know 
of  him,  it  is  impessible  to  place  the  least  reliance  on  any  statement  he  may 
make."  See  Gass  v.  Stinson,  supra,  and  cases  cited,  that  the  question  in  chan- 
cery is  the  same  in  form  as  at  law,  on  the  English  authorities.  It  is,  therefore, 
by  no  means  clear  that  the  general  inquiry  as  to  the  character  for  notorious  lewd- 
ness, mentioned  as  admissible  in  Rex  v.  Clarke,  2  Stark.  241,  may  not,  after  all, 
be  traced  to  the  general  ground.  If  such  a  latitude  be  allowed  anywhere,  it 
seems  to  be  emphatically  proper  in  a  case  of  rape.  Daggett,  J.,  in  State  v. 
Be  Wolf,  8  Conn.  100,  20  Am.  Dec.  90. 


RAPE.  825 

110,  the  absurdity  of  that  distinction  was  acknowledged,  and  the 
two  cases  which  established  it  were  overruled.  The  court  say: 
"When  adulterous  disposition  is  shown  to  exist  between  the  par- 
ties at  the  time  of  the  alleged  act,  then  mere  opportunity,  with 
comparatively  slight  circumstances  showing  guilt,  will  be  sufficient 
to  justify  the  inference  that  criminal  intercourse  has  actually  taken 
place.  The  intent  and  disposition  of  the  parties  towards  each 
other  must  give  character  to  their  relations,  and  can  only  be  ascer- 
tained, as  all  moral  qualities  are,  from  acts  and  declarations  of  the 
parties.  It  is  true  that  the  fact  to  be  proved  is  the  existence  of  a 
criminal  disposition  at  the  time  of  the  act  charged;  but  the  indi- 
cations by  which  it  is  proved  may  extend,  and  ordinarily  do  extend 
over  a  period  of  time  both  anterior  and  subsequent  to  it.  The 
rules  which  govern  human  conduct,  and  which  are  known  to  com- 
mon observation  and  experience,  are  to  be  applied  in  these  cases 
as  in  all. 

The  woman  having  denied  that  she  had  had  connection  with 
the  individual  accused  of  assaulting  her,  it  was  sought  ah  aliunde 
to  prove  that,  at  certain  specified  times  and  places  before  the  time 
of  the  commission  of  the  alleged  offense,  she  had  voluntarily  had 
connection  with  the  prisoner.  It  appears  to  me  clear  that  such 
evidence  was  admissible.  Now,  it  has  been  held  over  and  over 
again  that  where  evidence  is  denied  by  the  prosecutrix  with  regard 
to  acts  of  connection  committed  by  her  with  persons  other  than 
the  prisoner,  she  cannot  be  contradicted.  The  rejection  of  such 
evidence  is  founded  on  good  common  sense,  not  only  because  it 
would  put  cruel  hardship  on  a  prosecutrix,  but  also  on  the  ground 
that  the  evidence  does  not  go  to  the  point  in  issue,  that  point 
being  whether  or  not  a  criminal  assault  had  been  made  upon  her 
by  the  prisoner.  To  admit  evidence  of  connection  previously 
with  persons  other  than  the  prisoner  would  be  plainly  contrary  to 
the  most  elementary  rules  of  evidence,  but  to  reject  evidence  as 
to  the  particular  person  is  another  matter.  Because  not  only  does 
it  render  it  most  likely  that  she  would  or  would  not  have  con- 
sented, but  it  is  evidence  which  goes  to  the  very  point  in  issue. 
Raj.  v.  Riley,  10  Cox,  C.  C.  1  !»'•».  7  Am.  Crim.  Rep.  97. 

§  521.  Complaint  of  the  Outrage  may  be  Shown. — In  prose- 
cutions for  rape,  it  is  not  denied,  and  in  fact  may  be  said  to  be 
universally  conceded,  that  the  state  may,  on  the  direct  examina- 
tion of  the  prosecutrix,  prove  the  bare  fact  that  she  made  com- 


826  LAW    OF    EVIDENCE    IN    CRIMINAL    CASES. 

plaint  of  the  injury,  and  when  and  to  whom,  and  she  may  be  cor- 
roborated  by  the  person  to  whom  she  complained  as  to  the  same 
fact.  As  to  whether  tiie  details,  or  particular  facts  of  the  com- 
plaint, can  be  proved,  there  is  some  conflict  of  authority  among 
the  decisions  outside  of  this  state,  some  of  the  most  respectable 
courts  holding  that  such  evidence  is  admissible  to  show  the  nature 
of  the  complaint,  and  the  probability  of  its  truth.  Benstine  v. 
State,  2  Lea,  169,  31  Am.  Rep.  593;  Woods  v.  People,  55  N.  Y. 
515,  11  Am.  Eep.  309;  State  v.  Kinney,  44  Conn.  153,  26  Am. 
Eep.  436. 

The  rule  following  what  is  believed  to  be  the  weight  of  author- 
ity both  in  England  and  America,  is  settled  the  other  way.  When 
the  complaint  does  not  constitute  a  part  of  the  res  gestae,  but  is 
received  only  in  corroboration  of  the  prosecutrix's  testimony,  the 
general  rule  is,  that  the  details  or  particulars  cannot  be  intro- 
duced, in  the  first  instance,  by  the  state.  This  would  exclude  any 
statement  made  in  the  complaint  pointing  out  the  identity  of  the 
person  accused,  or  explaining  the  injuries  claimed  to  have  been 
received  during  the  alleged  perpetration  of  the  crime,  or  other- 
wise giving  the  minute  circumstances  of  the  event.  Griffin  v. 
State,  76  Ala.  29,  and  cases  there  cited;  Hornbeck  v.  State,  35 
Ohio  St.  277,  35  Am.  Eep.  608;  People  v.  Mayes,  m  Cal.  597, 
56  Am.  Eep.  120;   Oleson  v.  State,  1 1  Neb.  276,  38  Am.  Eep.  366. 

But  there  are  two  cases  at  least  where,  under  the  authorities, 
the  details  of  such  complaint  may  be  proved:  (1)  They  may  be 
elicited,  on  cross-examination,  by  the  defendant;  and  where  this 
is  doue  only  in  part,  the  state  may  then  proceed  to  prove,  on  the 
rebutting  examination,  the  whole  complaint.  (2)  Where  the  tes- 
timony of  the  prosecutrix  is  sought  to  be  impeached,  bj  attempt- 
ing to  discredit  her  story,  it  is  permissible,  by  way  of  corrobora- 
tion, for  the  state  to  prove  such  details,  and,  according  to  many  of 
the  authorities,  also  to  prove  that  she  told  the  story  the  same-way 
to  others,  confirmatory  of  her  first  statement.  Griffin  v.  State, 
76  Ala.  29;  Pleasant  v.  State,  15  Ark.  624;  State  v.  DeWolf,  8 
.Conn.  93,  20  Am.  Dec.  90;  State  v.Zaxton,  7S  K  C.  564. 

In  prosecutions  for  rape,  it  is  very  proper  for  the  jury  to  be 
exceedingly  cautious  how  they  convict  a  defendant  on  the  uncor- 
roborated testimony  of  the  prosecutrix,  especially  where  there  is 
evidence  tending  to  impeach  her  credibility,  for  the  experience  of 
the  courts  in  modern  times  has  amply  attested  the  assertion  of 


RAPE.  827 

Lord  Hale,  thai  the  charge  of  rape  is  "an  accusation  easy  to  make, 
and  hard  to  be  proved,  and  harder  still  to  be  defended  by  the 
party  accused,  though  never  so  innocent."  1  Hale,  P.  C.  635. 
But  there  is  no  rule  of  law  which  forbids  a  jury  to  convict  one 
charged  with  this  crime,  on  the  uncorroborated  testimony  of  the 
prosecutrix,  although  she  be  impeached  for  ill-fame  in  chastity,  or 
otherwise;  provided  they  be  satisfied,  beyond  a  reasonable  doubt, 
■of  the  truth  of  her  testimony.  Boddie  v.  State,  52  Ala.  395;  2 
Bishop,  Crim.  Proc.  (3d  ed.)  968.  If  this  were  not  so,  one  of  the 
•most  detestable  and  atrocious  of  all  crimes  known  to  the  law 
might  often  go  unpunished,  as  the  perpetrators  of  this  offense 
almost  invariably  seek  to  carry  out  their  purpose  when  their  vic- 
tim is  alone  and  unprotected.     Barnett  v.  State,  83  Ala.  40. 

"But  the  rule  respecting  the  time  that  elapses  before  the  prose- 
cutrix complains  will  not  apply  where  there  is  good  reason  for 
the  delay,  as  that  she  was  under  the  control  or  influenced  by  her 
ravisher."     3  Chitty,  Crim.  L.  S12. 

And  to  the  same  effect  the  law  is  laid  down  in  1  East,  P.  C.  435, 
438,  citing  the  case  of  Bex  v.  Bussen,  where  the  defendant  was 
master  of  a  charity  school,  and  when  the  female  assailed,  one  of 
his  pupils,  was  deterred  by  his  threats  from  making  discovery  of 
the  outrage  until  three  months  after  the  offense  was  committed, 
and  where  the  conviction  was  held  good. 

And  m  New  York  the  court  of  appeals  has  laid  down  the  same 
rule.  Biggins  v.  People,  58  X.  Y.  379;  Baccio  v.  People,  -fl 
K  Y.  266. 

We  may  conclude  therefore  that  the  rule  requiring  immediate 
complaint  is  not  inflexible.  That  if  reasonable  circumstances 
cause  delay,  the  effect  is  simply  for  the  jury;  and  their  province 
.as  to  that  fact  will  not  be  invaded  by  the  court.  State  v.  Byrne, 
17  Conn.  fo6;  State  v.  Be  Wolf,  8  Conn.  99,  20  Am.  Dec.  90; 
Mallet  v.  People,  3  Hawley,  Am.  Crim.  Hep.  382,  and  cases  cited 
in  note. 

It  is  a  general  rule  that  the  evidence  of  a  witness  can  never  be 
corroborated  or  confirmed  by  proof  that  the  witness  stated  the* 
same  facts  testified  to  in  court  on  some  occasion  when  not  under 
oath.  Such  statements,  like  all  hearsay  evidence,  are  excluded  as 
unsatisfactory  and  incompetent.  Hut  there  is  an  exception  to  the 
rule  in  cast?  of  rape.  The  outrage  in  such  a  case  upon  a  virtuous 
female  is  so  great  that  there  i,-  a  natural    presumption  that  at  the 


828  LAW    OF   EVIDENCE    IN    CRIMINAL    CASES. 

first  suitable  opportunity  she  would  make  disclosure  of  it;  and  she 
would  be  so  far  discredited  if  she  did  not  make  the  disclosure,  for 
the  purpose  of  confirming  her  evidence  where  she  is  a  witness, 
such  disclosure  may  be  received.  But  where  the  disclosure  is  not 
recent,  as  soon  as  suitable  opportunity  is  furnished,  the  reason  for 
receiving  it  in  evidence  does  not  exist,  and  the  principle  justify- 
ing its  reception  does  not  apply. 

In  1  Hale's  Pleas  of  the  Crown,  632,  it  is  said  that  "the  complain- 
ant must  make  fresh  discovery  and  pursuit  of  the  offense  and 
offender,  otherwise  it  carries  a  presumption  that  her  suit  is  but 
malicious  and  feigned." 

In  1  East's  Pleas  of  the  Crown,  445,  it  is  said  that  the  evidence 
of  the  complainant  "is  confirmed  if  she  presently  discovered  the 
offense  and  made  pursuit  for  the  offender,"  and  that  "her  evi- 
dence is  discredited  if  she  concealed  the  injury  for  any  consider- 
able time  after  she  had  opportunity  to  complain."  And  the  same 
language  is  substantially  embodied  in  4:  Blackstone's  Commenta- 
ries, 214. 

In  Baccio  v.  Peoj)le,  41  N.  Y.  265,  the  defendant  was  indicted 
for  rape  and  upon  the  trial  the  prosecution  was  permitted  to  give 
evidence  that  the  complainant  disclosed  the  crime  to  her  mother 
twenty-four  days  after  its  commission;  and  the  conviction  in  that 
case  was  reversed  on  the  ground  that  the  mother  of  the  complain- 
ant was  permitted  to  testify  in  detail  on  her  direct  examination 
to  the  statements  made  to  her  by  the  complainant  of  the  time  and 
manner  of  the  offense.  Judge  Woodruff,  writing  the  opinion, 
said  : 

"I  was  first  inclined  to  say  that  evidence  of  any  complaint  made 
so  long  after  the  alleged  injury,  and  especially  when  forced  from 
the  daughter,  by  the  mother,  after  her  daughter  had  once  declared 
that  her  injury  was  due  to  a  fall,  should  not  have  been  received 
at  all  from  any  person;  the  complaint  was  certainly  not  made  re- 
cently after  the  alleged  outrage.  But  in  a  case  in  which  the  fact 
of  complaint  is  admissible,  it  is  perhaps  competent  to  explain  the 
want  of  such  early  complaint,  by  facts  which  show  that  it  was 
impracticable,  or  that  it  was  prevented  by  circumstances  consist- 
ent with  the  natural  impulse  to  complain  thereof,  so  far  at  least 
as  to  destroy  the  presumption  of  falsehood  derivable  from  con- 
cealment on  the  part  of  the  female." 

In  the  course  of  his  opinion  the  same  learned  judge  said  that 


RA.PE.  829 

the  rule  admitting  such  declarations  in  case  of  rape  is  an  exception 
to  the  general  rule  excluding  declarations  made  out  of  court  by  a 
person  who  had  been  or  might  be  examined  as  a  witness,  and  is 
properly  confined  within  narrow  limits;  and  he  suggested  that  the 
reason  for  the  admission  of  such  declarations  is  "that  it  is  so  nat- 
ural as  to  be  almost  inevitable,  that  a  female  upon  whom  the 
crime  has  been  committed  will  make  immediate  complaint  thereof 
to  her  mother,  or  other  confidential  friend,  and  inasmuch  her  fail- 
ure to  do  so  would  be  strong  evidence  that  her  affirmation  on  the 
subject,  when  examined  as  a  witness,  was  false,  that  the  prosecu- 
tion may  anticipate  such  a  claim  by  affirmative  proof  that  com- 
plaint was  made." 

In  Iliggins  v.  People,  58  N.  Y.  377,  the  defendant  was  indicted 
for  rape.  In  that  case  it  appeared  that  the  prosecutrix  arrived  in 
.New  York  an  entire  stranger,  and  having  lost  her  baggage  she 
was  inveigled  into  a  basement  on  pretense  of  finding  it,  where  she 
was  outraged.  Upon  coming  out  into  the  street  she  met  a  woman 
who  asked  her  what  was  the  matter,  also  a  policeman  who  took 
her  to  a  station-house.  To  neither  of  these  did  she  state  the  real 
offense;  but  it  appeared  that  as  soon  after  arriving  at  the  station- 
In  >use  as  her  excitement  would  admit,  she  stated  the  facts  to  the 
police  captain.  Upon  these  facts  defendant's  counsel  requested 
the  court  to  charge  that  "if  the  jury  believe  the  prosecuting  wit- 
ness did  not  make  prompt  disclosure  of  the  alleged  wrong,  it  is  a 
circumstance  against  her,  casting  a  great  discredit  on  her  testi- 
mony, and  tends  strongly  to  disprove  the  truth  of  the  accusation.1' 
This  the  court  refused  to  charge,  and  it  was  held,  conceding  the 
proposition  to  be  entirely  accurate,  it  was  an  abstract  one,  as  there 
was  no  ground  for  saying  that  the  disclosure  was  not  sufficiently 
prompt,  and  that  it  was  not  error,  therefore,  to  refuse  so  to  charge. 

Church,  Ch.  ./.,  writing  the  opinion,  said :  "The  proposition 
(which  the  court  was  requested  to  charge)  is,  doubtless,  substan- 
tially correct,  although  it  is  quite  general  and  somewhat  vague. 
Any  considerable  delay  on  the  part  of  a  prosecutrix  to  make  com- 
plaint of  the  outrage  constituting  the  crime  of  rape,  is  a  circum- 
stance of  more  or  less  weight,  depending  upon  the  other 
surrounding  circumstances.  There  may  be  many  reasons  why  a 
failure  to  make  immediate  or  instant  outcry  should  not  discredit 
the  witness.  A  want  of  suitable  opportunity,  or  fear  may  some- 
times excuse  or  justify  a  delay.     There  can  he  no  iron  rule  on  the 


830  LAW    OF    EVIDENCE    IN    CRIMINAL    CASES. 

subject.  The  law  expects  and  requires  that  it  should  be  prompt; 
but  there  is,  and  can  be,  no  particular  time  specified.  The  rule 
is  founded  upon  the  laws  of  human  nature,  which  induce  a  female 
thus  outraged  to  complain  at  the  first  opportunity.  Such  is  the 
natural  impulse  of  an  honest  female." 

In  Connecticut  a  more  liberal  rule  as  to  disclosures  made  by  a 
prosecutrix  has  been  adopted  than  prevails  in  some  other  states. 
State  v.  De  Wolf,  8  Conn.  93,  20  Am.  Dec.  90;  State  v.  Byrne, 
17  Conn.  465. 

There  it  may  be  proved,  not  only  that  she  made  disclosures  of 
the  crime,  but  the  details  of  the  crime  as  she  disclosed  them  may 
also  be  proved.  In  the  two  cases  cited  the  disclosures  were  made 
after  a  much  longer  time  than  in. any  other  case  which  has  come 
to  our  attention. 

In  Ohio,  the  immediateness  of  the  complaint  is  essential  to  its 
admissibility.  Hornbeck  v.  State,  35  Ohio  St.  277,  35  Am.  Rep. 
608.  In  Johnson  v.  State,  17  Ohio,  593,  it  is  said:  "There  can 
be  no  doubt,  that  in  a  case  of  rape  the  declarations  of  the  injured 
female,  made  immediately  or  soon  after  the  injury  inflicted 
are  competent  testimony,  provided  the  female  herself  has  first 
been  examined;  competent  not  for  the  purpose  of  proving  the 
commission  of  the  offense,  but  as  corroborative  of,  or  contra- 
dictory to  her  statements  made  in  court.  If  these  declara- 
tions are  in  accordance  with  the  testimony  given  in  court,  they 
tend  to  strengthen  and  give  effect  to  that  testimony,  if  against  itr 
the  testimony  is  destroyed.  If  such  testimony  were  to  be  entirely 
excluded  when  offered  on  the  part  of  the  prosecution,  it  would  be 
extremely  difficult  to  convict  in  any  case.  For,  as  a  general  rule 
it  would  be  dangerous  to  convict,  unless  immediate  complaint  was 
made  by  the  female,  to  her  friends  or  others." 

The  same  doctrine  has  recently  been  announced  in  Michigan, 
People  v.  G<t(je,  62  Mich.  271,  where  Champlin,  J.,  said  :  "It  is 
contended  that  the  testimony  ought  not  to  have  been  received 
because  of  the  lapse  of  time  after  the  outrage  and  the  statement 
of  the  mother.  The  lapse  of  time  occurring  after  the  injury,  and 
before  complaint  made,  is  not  the  test  of  admissibility  of  the  evi- 
dence, but  it  may  be  considered  as  affecting  its  weight;  and,  when 
complaint  is  not  made  promptly,  the  delay  calls  for  explanation 
before  the  court  will  admit  it." 

§  522.  Caution  as  to  the  Admission  of  Uncorroborated 
Testimony. — .More  than  the  testimony  of  the  prosecutrix  is  re- 


RAPE.  831 

quired  to  convict.  Sack.  Inst.  (2d  ed.)  No.  11,  767;  "Whart.  Crim. 
Ev.  (9th  ed.)  §  273;  State  v.  WUson,.91  Mo.  410;  People  v.  a Sulli- 
van, 104  N.  Y.  481;  Parker  v.  State,  67  Md.  329;  Dunn  v.  State, 
45  Ohio  St.  249.  If  there  is  no  outcry  and  prosecutrix  remains 
friendly  with  accused  after  offense,  these  facts  raise  a  strong  pre- 
sumption of  innocence  on  the  part  of  the  accused.  Barney  v. 
People,  22  111.  160.  The  same  presumption  arises  where  there  is 
no  injury  to  the  clothing  and  prosecutrix  concealed  the  wrong  for 
several  days.  State  v.  Cross,  12  Iowa,  66,  79  Am.  Dec.  519.  No 
outcry  is  strong  evidence  against  prosecutrix's  story.  State  v. 
Cone,  46  N.  C.  18;  Gifford  v.  People,  87  111.  210;  Eyler  v.  State, 
71  Ind.  49;  Leoni  v.  State,  44  Ala.  110;  Topolanck  v.  State,  40 
Tex.  160;  State  v.  Byrne,  47  Conn.  465.  Where  defendant: 
denies  the  rape  prosecutrix  must  be  corroborated.  Mathews  v. 
State,  19  Neb.  330;  Gazley  v.  State,  17  Tex.  App.  267;  People 
v.  Tierney,  67  Cal.  54;  Dickey  v.  State,  21  Tex.  App.  430;  Bailey 
v.  Com.  82  Ya.  107;  Carney  v.  State,  118  Ind.  525;  Hall  v. 
People,  47  Mich.  636;  State  v.  Cook,  65  Iowa,  560;  Laioson  v.  State, 
17  Tex.  App.  292.  If  there  has  been  a  want  of  promptness  in 
making  complaint  or  declarations  the  court  should  not  admit  evi- 
dence of  complaint  or  declarations  until  delay  has  been  satisfac- 
torily excused  or  justified. 

§  523.  Utmost  Resistance  must  be  Shown. — Of  course,  the 
phrase,  ''the  utmost  resistance,"  is  a  relative  one;  and  the  resist- 
ance may  be  more  violent  and  prolonged  by  one  woman  than 
another,  or  in  one  set  of  attending  physical  circumstances  than  in 
another.  In  one  case  a  woman  may  be  surprised  at  the  onset, 
and  her  mouth  stopped  so  that  she  cannot  cry  out,  or  her  arms 
pinioned  so  that  she  cannot  use  them,  or  her  body  so  pressed 
about  and  upon  that  she  cannot  struggle.  But  whatever  the  cir- 
cumstances may  be,  there  must  be  the  greatest  effort  of  which  she 
is  capable  therein,  to  foil  the  pursuer  and  preserve  the  sanctity  of 
her  person.  This  is  the  extent  of  her  ability.  And  see  People  v. 
Bransby,  32  K  Y.  525,  531,  540;  People  v.  liaise,  3  Hill,  309, 
316,  317;  Bex  v.  Lloyd,  7  Car.  <fc  P.  318;  CrossweU  v.  People,  13 
Mich.  427,  433,  87  Am.  Dec.  774;  People  v.  Dohriny,  59  K  Y. 
374,  17  Am.  Kep.  349. 

In  Iowa,  it  is  held  in  one  case,  that  it  is  not  necessary  to  estab- 
lish the  non-consent  or  force  by  the  outcry  of  the  female,  nor  to 
show  the  fact  of  an  actual  struggle.     It  is  to  be  observed  of  that 


832  LAW    OF    EVIDENCE    IN    CRIMINAL    CASES. 

case,  that  the  imbecility  of  mind  of  the  female  was  shown,  and 
that  some  force  was  used  by  the  accused;  and  the  case  turned 
upon  the  lack  of  intelligence  in  the  victim  to  give  or  withhold 
consent,  or  to  prompt  a  vigorous  resistance.  State  v.  Tarr,  28 
Iowa,  397. 

The  nature  and  extent  of  resistance  which  ought  reasonably  to 
be  expected  in  each  particular  case  must  necessarily  depend  very 
much  upon  the  peculiar  circumstances  attending  it,  and  it  is  hence 
quite  impracticable  to  lay  down  any  rule  upon  that  subject  as 
applicable  to  all  cases  involving  the  necessity  of  showing  a  reason- 
able resistance.  Ledley  v.  State,  4  Ind.  580;  Pomeroy  v.  State,  94 
Ind.  96;  Com.  v.  McDonald,  110  Mass.  405;  Anderson  v.  State, 
104  Ind.  467;  2  Bishop,  Crim.  L.  §  1122. 

§  524.  Presumption  as  to  Infants. — In  Ohio  it  is  held  that 
"an  infant  under  the  age  of  fourteen  years  is  presumed  to  be  in- 
capable of  committing  the  crime  of  rape,  or  an  attempt  to  commit 
it,  but  that  presumption  may  be  rebutted  by  proof  that  he  has 
arrived  at  the  age  of  puberty,  and  is  capable  of  emission  and  con- 
summating the  crime."  Williams  v.  State,  14  Ohio,  222,  45  Am. 
Dec.  536.  The  same  rule  prevails  in  New  York.  People  v. 
Randolph,  2  Park.  Crim.  Eep.  174.  See  also  Com.  v.  Green,  2 
Pick.  3S0;  Williams  v.  State,  20  Fla.  777. 

The  rule  doubtless  is  that  on  the  trial  of  an  indictment  for  rape 
proof  of  the  fact  that  the  prosecutrix  made  complaint  recently 
after  the  commission  of  the  offense  is  cum  potent;  while  details 
o-iven  by  her  as  to  how  the  offense  was  committed,  and  by  whom, 
are  not  competent  as  evidence  in  chief;  that  it  is  also  competent 
to  show  the  condition  of  the  prosecutrix,  mentally  and  otherwise, 
immediately  after  the  offense  in  order  that  the  jury  may  judge 
more  accurately  as  to  the  credit  that  should  be  given  to  her  testi- 
mony. 

Mr.  Eussell,  in  his  treatise  on  Crimes,  after  mentioning  among 
the  circumstances,  bearing  on  the  credibility  of  the  female,  the 
fact  that  she  presently  discovered  the  offense,  says :  "It  is  the 
usual  course,  in  cases  of  rape,  to  ask  the  prosecutrix  whether  she 
made  any  complaint,  and  if  so,  to  whom;  and  if  she  mentions  a 
person  to  whom  she  made  complaint,  to  call  such  person  to  prove 
that  fact.  But  it  has  been  the  invariable  practice  not  to  permit 
either  the  prosecutrix  or  the  person  so  called  to  state  the  particu- 
lars of  the  complaint  during  the  examination  in  chief. 


.rape.  833 

These  several  writers  refer  to  the  numerous  cases  in  England, 
and  in  this  country,  in  which,  not  without  some  conflict,  however, 
the  subject  has  been  discussed. 

Thus,  in  Rex  v.  Clarice,  2  Stark.  334,  Holroyd,  J.,  held  that 
the  fact  of  her  having  made  the  complaint  was  evidence,  as  also 
was  the  description  of  her  state  and  appearance  at  the  time;  but 
that  the  particulars  of  the  complaint  were  not  evidence  of  the 
truth  of  her  statement. 

In  Beg.  v.  Walker,  2  Mood.  &  E.  212,  it  was  held  by  Parke, 
Bar on,  that  the  female  assaulted  may  be  confirmed  by  proof,  that 
she  recently  after  the  alleged  outrage  made  a  complaint,  but  that 
the  particulars  of  what  she  said  cannot  be  asked  in  chief  of  the 
•confirming  witness,  though  they  may  in  cross-examination. 

In  Beg.  v.  Megson,  0  Car.  dc  P.  42S,  evidence  having  been 
given  of  the  appearance  of  the  female  on  arrival  at  home  early  in 
the  morning,  immediately  after  the  alleged  outrage,  and  of  her 
condition  on  examination  by  a  surgeon  on  a  subsequent  day;  and 
also,  that  as  soon  as  she  readied  home  in  the  morning,  she  made 
complaint  of  what  had  happened  to  her,  and  it  was  proposed  to 
inquire  "the  terms  of  the  complaint,"  it  was  excluded.  In  that  as 
also  in  Beg.  v.  Guttridge,  9  Car.  &  P.  471,  where  evidence  of  her 
recent  complaint  was  excluded,  the  injured  female  had  not  been 
examined  as  a  witness.  Thus  showing  that  her  declarations  are 
not,  per  se,  evidence  against  the  party  charged. 

In  People  v.  McGee,  1  Denio,  19,  the  supreme  court  of  New 
York  state  approve  and  follow  the  decisions  in  the  two  cases,  last 
cited. 

In  People  v.  Halse,  3  Hill,  310,  Bronson,  J.,  after  citing  the 
admonitory  remarks  of  Lord  Hale  on  the  ease  with  which  the 
accusation  may  be  made,  and  the  difficulty  of  defending  by  the 
party  charged,  be  he  never  so  innocent  adds:  "Cases  of  this 
character  do  not  call  for  any  relaxation  of  the  rules  of  evidence 
for  the  purpose  of  supporting  the  accusation.  .  .  .  There  is 
much  greater  danger  that  injustice  may  be  done  to  the  defendant 
in  cases  of  this  kind,  than  there  is  in  prosecutions  of  any  other 
character." 

In  a  case  of  this  character,  the  omission  of  the  prosecutrix  to 

promptlv  make  complaint  of  the  wrong  which  she  has  suffered, 

may  be   taken  as  a  circumstance   against   the   credibility  of  her 

statements  as  a  witness  against  the  prisoner,  unless  delay  in  doing 

53 


834  LAW    OF    EVIDENCE    IN    CRIMINAL    CASES. 

so  is  reasonably  excused.  Higgins  v.  People,  5S  N.  Y.  377.  It 
is,  therefore,  competent  to  prove  by  the  witness  to  whom  made, 
that  she  did  not  make  such  complaint.  Such  a  proof  is  not,  and 
cannot,  be  treated  as  any  evidence  of  the  fact  so  stated,  but  is  ad- 
missible only  on  the  question  of  her  credibility,  and  therefore  can 
be  received  only  when  she  has  testified  as  a  witness.  People  v. 
McGee,  1  Denio,  19;  Baccio  v.  People,  41  N.  Y.  265.  The  cases 
are  not  uniform  as  to  the  extent  of  the  inquiry  which  may  be  put 
to  and  answered  by  a  witness  to  whom  such  complaint  is  made. 
The  rule  in  some  of  the  states  permits  a  full  statement  in  detail 
of  the  facts  communicated  by  and  embraced  in  the  complaint  to 
be  given  by  the  witness.  It  is  such  in  Connecticut  {State  v.  De- 
Wolf,  8  Conn.  153.  2«»  Am.  Rep.  90;  State  v.  Kinney,  11  Conn. 
153,  26  Am.  Rep.  136);  in  Tennessee  (Phillips  v.  State,  9  Humph. 
246,  19  Am.  Dec.  709;  Benstint  v.  State,  2  Lea,  169,  31  Am.  Rep. 
593);  and  in  Ohio.  Johnson  v.  State,  17  Ohio,  593;  Laughlin  v. 
State,  IS  Ohio,  99,  51  Am.  Dec.  111.  The  rule  in  England  for 
many  years  Las  been  more  restrictive,  and  does  not  permit  the 
admission,  on  the  part  of  the  prosecution,  upon  the  trial,  of  the- 
statement  so  made  by  the  prosecutrix,  to  any  extent  further  than 
that  she  made  complaint  of  an  outrage  upon  her  person.  The 
name  of  the  persons  who  did  it,  or  the  place  where  done,  as  de- 
clared by  her  at  the  time  of  making  such  complaint,  is  not  admis- 
sible, nor  is  any  other  than  the  general  fact  embraced  within  it: 
and  such  is  the  rule  in  some  of  the  states.  Reg.  v.  Osborne,  1 
Car.  &  M.  621;  Reg.  v.  Megson,  9  Car.  &  P.  420;  Rex  v.  Clarke, 
2  Stark.  211;  Reg.  v.  Walker,  2  Mood.  &  E.  212;  Reg.  v.  Mer- 
cer, 6  Jur.  213;  Oleson  v.  State,  11  Neb.  27'!,  38  Am.  Rep.  366; 
State  v.  Thompson,  38  Ind.  39:  State  v.  Richwrds,  33  Iowa,  420. 

It  is  proper  evidence  in  support  of  an  indictment  for  rape  that 
the  injured  party  made  complaint  immediately  after  the  occur- 
rence. It  is  not  admitted  as  evidence  of  the  criminal  act,  but  in 
support  of  direct  evidence  of  such  an  act.  Baccio  v.  People,  41 
N.  Y.  265. 

These  rules  in  regard  to  the  crime  of  rape  laid  down  by  the  old 
authors  have  been  recognized  by  the  courts  down  to  the  present 
time;  and  the  fact  that  the  complaining  witness  made  early  com- 
plaint of  the  offense  charged  has  always  been  considered  strong 
corroboration  of  her  charge;  and  the  fact  that  she  made  no  com- 
plaint at  the  time,  and  delayed  the  prosecution,  has  always  been. 


RAPE.  835 

considered  a  suspicious  circumstance  against  the  prosecution.  In 
this  case,  the  complaining  witness  testified  that  as  soon  as  the 
accused  left  her  house  she  left  the  house  and  went  to  Mrs.  Mars- 
ton's,  her  nearest  neighbor,  and  told  her  what  had  been  done,  and 
that  when  she  met  her  husband,  on  the  same  day,  she  made  com- 
plaint to  him.  Hex  v.  Clarice,  2  Stark.  241;  Reg.  v.  Osborne,  1 
Car.  &  M.  622;  Reg.  v.  Megson,  9  Car.  &  P.  420;  State  v.  Niles, 
47  Vt.  82:  Baccio  v.  People,  41  N.  Y.  265;  Reg.  v.  Walker,  2 
Mood. &R. 212;  People  v.  McGee,  1  Denio,  19;  People  v.Hulse, 
3  Hill,  316;  People  v.  Mayes,  66  Cal.  597;  People  v.  Ti(  rney,  67 
Cal.  54;  State  v.  Richards,  33  Iowa,  42<i;  State  v.  Clarke,  69 
Iowa,  294;  People  v.  Gage,  62  Mich.  271.  These  cases  all  hold 
that  it  is  proper  for  the  prosecution  to  show  that  the  complaining 
witness  made  complaint  of  the  alleged  ravishment,  and  that  the 
person  to  whom  the  complaint  was  made  may  be  called  as  a  wit- 
ness on  the  part  of  the  .-rate,  and  may  testify  that  such  complaint 
was  in  fact  made;  but  the  particulars  of  the  statements  made  by 
the  complainant  witness  cannot  be  given  in  evidence,  except  in  a 
case  where  the  person  ravished  is  very  young.  There  certainly 
was  no  error  in  permitting  the  husband  of  the' prosecuting  witness 
to  testify  that  she  made  complaint  to  him  of  the  outrage  when  she 
first  saw  him  on  the  evening  after  the  offense  was  claimed  to  have 
been  committed;  nor  was  there  any  error  in  permitting  him  and 
the  medical  witness  to  testify  to  the  existence  of  the  marks  and 
bruises  upon  her  person.  There  is  no  suspicion  attached  to  the 
case  of  the  state  arising  from  delay  in  the  persecution.  The 
injured  party,  in  the  language  of  the  old  law,  made  immediate 
••line  and  cry,"  and  had  the  defendant  arrested  within  a  few  hours 
after  the  alleged  crime  was  committed.  Hannon  v.  State,  70  Wis. 
448,  10  Crim.  L.  Mag.  421. 

Touching  the  crime  under  discussion,  Blackstone  says:  "The 
party  ravished  may  give  evidence  upon  oath, and  is  in  law  a  com- 
petent witness;  but  the  credibility  of  her  testimony,  and  how  far 
forth  she  is  to  be  believed  must  be  left  to  the  jury  upon  the  cir- 
cumstances of  fact  that  concur  in  that  testimony.  For  instance: 
If  the  witness  be  of  good  fame:  if  she  presently  discovered  the 
offense,  and  made  search  tor  the  offender;  if  the  party  accused 
fled  for  it;  these  and  the  like  are  concurring  circumstances  which 
give  greater  probability  to  her  evidence.  But  on  the  other  side, 
if  she  be  of  evil  fame,  and  stand   unsupported   by  others;    if  she 


830  LAW    OF    EVIDENCE    IN    CRIMINAL    CASES. 

concealed  the  injury  for  any  considerable  time  after  she  had 
opportunity  to  complain;  if  the  place  where  the  fact  was  alleged 
to  be  committed  was  where  it  was  possible  she  might  have  been 
heard,  and  she  made  no  outcry;  these  and  the  like  circumstances 
carry  a  strong  but  not  conclusive  presumption  that  her  testimony 
is  false  or  feigned."     4  Bl.  Com.  213. 

These  remarks  are  for  the  most  part  but  a  condensed  statement 
from  what  had  already  been  said  by  an  earlier  author.  1  Hale, 
P.  C.  634,  635. 

Wharton  says:  "In  prosecutions  for  rape,  where  the  party 
injured  is  a  witness,  it  is  material  to  show  that  she  made  complaint 
while  it  was  yet  recent."     Whart.  Grim.  Ev.  (9th  ed.)  §  273. 

§  525.  Evidence  of  Previous  Offenses  or  Attempts.— But 
where  a  prisoner  is  tried  for  a  particular  crime,  it  is  always  com- 
petent to  show  on  the  question  of  his  guilt  that  he  had  made  an 
attempt  at  some  prior  time,  not  too  distant,  to  commit  the  same 
offense.  Upon  the  trial  of  a  prisoner  for  murder,  it  is  competent 
to  show  that  he  had  made  previous  threats  or  attempts  to  kill  his 
victim.  People  v.  Jones,  99  IS".  Y.  667."  Upon  the  same  princi- 
ple, it  must  always  be  competent  to  show  that  one  charged  with 
rape  had  previously  made  an  unsuccessful  attempt  to  do  so.  State 
v.  Way,  5  Neb.  287;  Whart.  Grim.  Ev.  35,  46,  49;  Lawson  v. 
State,  20  Ala.  65,  56  Am.  Dec.  182;  State  v.  Knapp,  45  K  H.  156; 
State  v.  Wallace,  9  N.  II.  515;  Strang  v.  People,  24  Mich.  6; 
State  v.  Marvin,  35  N.  II.  22;  Sharp  v.  State,  15  Tex.  App.  171; 
Com.  v.  Nichols,  114  Mass.  285,  19  Am.  Rep.  346;  Beg.  v.  Bear- 
den,  4  Fost.  &  F.  76;  Com.  v.  Lahey,  14  Gray,  92;  Beg.  v. 
Jones,  4  L.  T.  K  S.  154;  Beg.  v.  Chamber*,  3  Cox,  C.  C.  92;  Com. 
v.  Merriam,  14  Pick.  518;  Williams  v.  State,  8  Humph.  585. 

§  526.  Consent  Secured  by  Fraud. — The  plaintiff  in  error  is 
a  physician  having  a  wife  and  four  children.  The  prosecutrix  is 
a  single  woman  thirty  years  of  age.  The  commission  of  the 
offense  rests  upon  her  testimony  alone.  Her  evidence,  briefly 
stated,  is,  that  the  plaintiff  in  error,  while  attending  her  in  a  pro- 
fessional capacity,  told  her  that  she  had  a  disease  of  the  womb, 
and  that  a  physical  examination  was  necessary;  that  she  submitted 
with  much  reluctance;  that  he  had  carnal  connection  with  her, 
on  two  occasions,  while  professing  to  be  making  such  examination; 
that  this  occurred  in  the  parlor  of  her  brother's  house,  in  the  day 
time,  while  the  wife  of  her  brother  was  in  an  adjoining  room; 
that  she  made  no  outcry;  that  she  believed  that  while  the  plaintiff 


RAPE.  837 

in  error  was  doing  these  acts,  he  was  making  a  medical  examina- 
tion in  the  usual  way,  and  that  she  made  no  revelation  of  these 
occurrences  until  after  she  had  been  told  that  she  was  pregnant. 

No  one,  we  think,  would  seriously  contend  that  such  a  state- 
ment, made  by  a  female  of  mature  age,  and  possessing  any  intel- 
lectual capacity  ought  to  be  allowed  to  become  the  basis  of  a 
judicial  action.  The  effort  of  the  prosecution,  therefore,  was  to 
show  that  the  mental  condition  of  the  prosecutrix  was  such  as  to 
render  her  testimony  credible.     This  effort  failed. 

The  only  testimony  on  this  point  come  from  Dr.  Stickney,  who 
had  known  her  twenty  years.  lie  testified  that  "she  is  not  an 
imbecile,  but  not  a  smart  or  strong  minded  girl." 

Farther  comment  on  the  facts  is  unnecessary. 

The  court,  among  other  points,  charged  the  jury  as  follows: 
"As  to  the  degree  of  force  used  in  a  case  like  this,  where  resist- 
ance is  not  made  by  reason  of  a  representation  leading  the  female 
to  believe  that  sexual  penetration  of  her  body  is  necessary  for  the 
recovery  from  disease,  the  force  used  in  ordinary  sexual  inter- 
course is  sufficient  to  constitute  a  rape."  An  exception  was  taken 
to  this  part  of  the  charge. 

The  prisoner's  counsel  requested  the  court  to  charge  several 
propositions  presenting  the  point,  that  the  force  requisite  to  con- 
stitute the  crime  of  rape  had  not  been  proved,  and  also  this  proposi- 
tion, namely:  that  "even  if  the  defendant  had  accomplished  his 
alleged  purpose  by  fraud,  without  intending  to  use  force,  then 
such  fraud  does  not  constitute  rape,  unless  the  evidence  shows 
that  the  defendant  intended  to  use  force,  if  the  fraud  failed;"  but 
the  court  refused  to  modify  the  charge,  and  the  prisoners  counsel 
excepted. 

We  are  of  opinion  that  the  proposition,  quoted  from  the  charge, 
is  erroneous.  jSTo  authority  has  been  cited  sustaining  such  a  propo- 
sition. The  remark  of  Mr.  Wharton  in  his  treatise  (Am.  Crim.  L. 
§  1144)  cannot  be  regarded  as  having  the  sanction  of  his  learning 
and  ability.  It  rests  upon  no  other  foundation  than  a  note  to  the 
reporter  in  People  v.  Bartow,  1  Wheel.  Crim.  Cas.  381,  which 
states  a  mere  rumor  of  a  decision  by  Ch.  J.  Thompson.  Loose 
statements  of  that  kind  are  entitled  to  no  consideration  whatever. 
Principles  contrary  to  those  laid  down  by  the  court  below  have 
been  frequently  asserted.  See  authorities  cited  in  Roscoe,  Crim. 
Ev.  (6th  ed.  i  278,  806.  See  also  Pi  opl  v.  Bransby,  32  X.  V.  528; 
Walter  v.  People,  50  Barb.  L44,2  Bishop, Crim.  L  ..'.:  L078,  L080. 


CHAPTER  LIX. 

INCEST. 

§  527.   The  Term  Defined. 

528.  Concurring  Assent  of  both  Parties  Necessary. 

529.  Consanguinity  may  be  Proved  by  Defendant. 

530.  Offense  may  be  Committed  with  Illegitimate  Daughter. 

531.  Previous  Acts  of  Lasciviousness  may  be  Shown. 

§  527.  The  Term  Defined. — The  carnal  copulation  of  a  man 
and  a  woman  related  to  each  other  in  any  of  the  degrees  within 
which  marriage  is  prohibited  by  law.  It  is  punished  by  fine  and 
imprisonment,  under  the  laws  of  the  respective  states.  Vide  1 
Smith's  Laws  of  Pa.  26;  Dane,  Abr.  Index,  h.  t.\  Com.  Dig.  23, 
2,  68;  State  v.  Roswell,  6  Conn.  440;  1  Penal  Laws  of  China, 
§§  2,  10;  Swinb.  Jud.  Reg.  part  2,  p.  103,  §  17;  1  Bouvier,  Law 
Diet.  617. 

§  528.  Concurring  Assent  of  both  Parties  Necessary. — 
In  an  Oregon  case  {State  v.  Jarvis,  20  Or.  439),  the  prosecutrix 
testified  that  the  incestuous  intercourse  commenced  in  1884,  when 
she  was  16  years  old,  and  continuing  as  often  as  twice  a  week  and 
sometimes  oftener  and  until  April,  1889;  that  at  no  time  did  she 
willingly  consent,  but  was  compelled  by  force  to  submit;  that  at  one 
time  defendant  pointed  a  pistol  at  her  and  said  he  would  kill  her 
if  she  refused;  at  another  time  he  threatened  her  with  an  ax;  and 
at  another,  with  a  board;  that  she  did  not  complain  to  any  one 
because  defendant  said  he  would  shoot  her  if  she  told  anybody 
about  the  matter.  It  was  argued  for  the  appellant  that  the  crime 
of  incest  recmires  the  concurring  assent  of  both  parties,  and  that 
under  the  facts  in  this  case  defendant  was  guilty  of  rape,  if  guilty 
of  any  crime,  and  could  not  be  convicted  of  the  crime  of  incest. 
The  crime  of  incest  was  not  indictable  at  common  law,  but  is  so 
only  by  statute.  4  Bl.  Com.  64;  Bishop,  Statutory  Crimes,  §  728. 
To  the  statute  alone,  then,  must  be  looked  for  a  definition  of  the 
crime  and  for  a  solution  of  the  question  in  the  case. 

In  People  v.  Jenness,  5  Mich.  321,  it  is  said  by  Christiancy,  J.: 
"  This  offense  (incest)  can  only  be  committed  by  the  concurrent 
act  of  two  persons  of  opposite  sexes;    and  the  assent  or  concur- 

838 


INCEST.  839 

rence  of  the  one  is  as  essential  to  the  commission  of  the  offense  as 
that  of  the  other;  and  as  a  general  rule  both  must  be  guilty  or 
neither." 

In  Delany  v.  People,  10  Mich.  241,  the  information  was  based 
on  a  statute,  the  language  of  which  was  as  follows  :  "  If  any  man 
and  woman,  not  being  married  to  each  other,  shall  lewdly  and 
lasciviously  associate  and  cohabit  together,  every  such  person  shall 
be  punished,"  etc.;  held  that  the  offense  was  joint,  and  both  par- 
ties must  be  guilty,  or  neither.  In  Pe  Groat  v.  People,  39  Mich. 
121,  under  a  statute,  the  language  of  which  is  the  same  import,  it 
was  held  that  conviction  could  not  be  had  unless  the  act  was  by 
concurrent  assent  of  both  parties. 

Cooley,  J.,  speaking  for  the  court,  said:  "Fornication,  when 
the  element  of  near  relationship  makes  it  incest,  may  be  an  offense 
equally  detestable  and  heinous,  but  it  still  lacks  the  distinguishing 
characteristic  of  rape.  The  one  i.-  accomplished  by  the  impelling 
will  of  one  person,  ami  the  other  by  the  concurrent  assent  of  two." 
In  Baume)  v.  State,  49  Ind.  511.  19  Am.  Rep.  691,  the  statute 
provided  '"if  any  step-mother  and  her  step-son  shall  have  sexual 
intercourse  together."  etc.;  and  it  was  held  that  the  act  must  be 
joint,  and  one  of  the  parties  cannot  he  guilty  unless  the  other  is 
also,  and  the  acquittal  of  one  is  a  bar  to  the  trial  of  the  other.  So 
in  State  v.  Thomas,  53  Iowa,  211.  under  a  statute  which  provided 
that  "if  any  persons  within  the  prohibited  degrees  .  .  . 
carnally  know  each  other,  they  shall  be  deemed  guilty  of  incest," 
it  was  held  that  the  crimes  of  rape  and  incest  cannot  be  committed 
by  the  same  act;  the  consent  of  both  parties  to  the  connection 
being  necessary  to  constitute  the  crime  of  incest  under  the  statute. 
In  Yeoman  v.  State,  21  ^Xeb.  171.  the  statute  provided  that  '-per- 
sons within  certain  degrees,  who  shall  commit  adultery  or  forni- 
cation with  each  other,  shall  be  punished,"  etc.,  it  was  held  that 
one  of  the  parties  might  be  indicted  alone,  but  the  court  said: 
"It  is  true  that  both  must  be  guilty,  that  the  intermarriage,  co- 
habitation, adultery  or  fornication  must  be  by  a  union  of  minds  as 
well  as  of  actions."  In  State  v.  Ellis,  71  Mo.  385,  11  Am.  Rep- 
321,  it  was  held  that  where  the  evidence  proves  thecrimeof  rape, 
the  party  cannot  be  convicted  of  the  crime  of  incest.  So  in 
People  v.  Harriden,  1  Park.  Crim.  Rep.  344,  it  was  held  under 
a  statute  similar  to  ours,  that  when  the  illicit  connection  is  accom- 
plished  by  force,  the  defendant  cannot  be  convicted  of  incest,  but 


840  LAW    OF    EVIDENCE    IN    CRIMINAL    CASES. 

only  of  rape.  In  Noble  v.  State,  22  Ohio  St.  545,  by  way  of  argu- 
ment, it  is  said  :  "  The  crime  of  incest  is  committed  by  two  will- 
ing parties."  A  doctrine  contrary  to  that  laid  down  in  the 
authorities  before  referred  to,  has  been  held  in  Mercer  v.  State,  17 
Tex.  App.  452,  and  People  v.  Barnes  (Idaho)  Jan.  25, 1886.  The 
Texas  case  is  based  upon  former  decisions  of  the  same  court  and 
one  Michigan  nisi  prius  case,  which  has  been  repudiated  by  the 
court  of  last  resort  of  that  state,  as  we  have  already  seen.  The 
Idaho  case  is  not  in  point  in  the  case  before  us.  The  statement 
of  the  law  as  given  in  10  Am.  &  Eng.  Enc.  Law,  341,  is  not  be- 
lieved to  be  supported  by  the  weight  of  authority «  The  only 
cases  cited  as  authority  for  the  statement  are  the  Texas  and  Michi- 
gan nisi  prius  cases,  above  referred  to,  and  Norton  v.  State,  106 
Ind.  163.  The  decided  weight  of  authority  is  that  the  crimes  of 
rape,  by  forcible  ravishment,  and  incest  cannot  be  committed  by 
the  same  act,  but  that  of  incest  requires  the  concurring  assent  of 
both  parties.  Possibly  if  the  assent  of  one  party  was  induced  by 
fraud  or  deception,  the  party  perpetrating  the  fraud  might  be 
guilty  of  incest,  while  the  innocent  party  would  not,  or  one  party 
might  be  ignorant  of  the  relationship,  while  the  other  had  full 
knowledge  of  it,  and  so  other  circumstances  might  arise  under 
which  one  party  would  be  guilty  and  the  other  innocent.  State 
v.  Jarvis,  20  Or.  437. 

In  this  country  there  are  several  cases  to  the  same  effect.  Thus, 
in  CooJc  v.  State,  11  Ga.  53,  where  the  defendant  was  indicted  for 
incestuous  intercourse  with  his  own  daughter.  In  CayforoVs 
Case,  7  Me.  57,  against  a  married  man  for  lewd  and  lascivious 
cohabitation;  and  in  lianas  Case,  11  Me.  391,  for  adultery,  it  was 
held,  that  the  marriage  might  be  proved  by  the  admissions  of  the 
defendant.  Cayford's  Case  required  the  court  to  go  no  further 
than  to  say  the  evidence  was  admissible  where  the  marriage  was 
solemnized  out  of  the  state  or  country,  and  accordingly  the  court 
confined  their  decision  to  that  point,  though  their  reasoning  went 
beyond  it;  but  subsequently  in  Ham's  Case,  they  decided  that 
whether  the  marriage  was -within  or  without  the  state,  made  no 
difference.  These  cases  are  entitled  to  the  more  respect  from  the 
fact,  that  they  appear  to  have  been  decided  after  careful  consider- 
ation and  study  of  the  authorities.  See  also  Conn  run  v.  State,  14 
Ala.  546,  48  Am.  Dec.  Ill;  Forney  v.  Hattacher,  8  Serg.  &  It. 
159,  11  Am.  Dec.  590. 


INCEST.  bit 

§529.  Consanguinity  may  be  Proved  by  Defendant. — On 

the  trial  of  an  indictment  for  incest,  charged  to  have  been  com- 
mitted by  a  father  with  his  daughter,, the  declarations  of  the 
defendant  are  competent  evidence  upon  the  question  of  con" 
sanguinity.     People  v.  Harriden,  1  Park.  Crim.  Rep.  344. 

§  530.  Offense  may  be  Committed  with  Illegitimate  Daugh- 
ter.— The  evidence  in  the  case  cited  below  was  claimed  to  be  insuf- 
ficient, but  it  fairly  established  the  prisoner's  guilt,  and  fully  justi- 
fied the  verdict  of  the  jury.  If  some  of  it  was  open  to  objection, 
at  least  no  objection  was  made,  and  the  inference  of  the  defendant's 
guilt  was  an  easy  deduction  from  the  proof.  The  principal  ground 
of  defense  was  asserted,  that  the  victim  of  his  lust,  although  his- 
own  daughter,  was  illegitimate,  and  so,  whatever  his  depravity,  it 
was  not  the  crime  of  incest.  He  seduced  that  daughter's  mother^ 
abandoned  her  and  the  child  for  some  years;  then  returning,  took 
the  daughter,  just  grown  into  womanhood,  for  his  bookkeeper,  as- 
he  said;  seduced  her  in  turn;  and  now  pleads  her  illegitimate  birth,, 
the  disgrace  which  she  inherited  from  her  cradle  and  inherited 
from  him,  as  a  defense  to  the  charge  of  which  he  stands  convicted. 
The  law  draws  no  such  distinction.  If  it  did  we  should  be 
ashamed  of  it;  for  the  offense,  although  committed  with  a  daugh- 
ter born  out  of  wedlock,  is  not  by  that  fact  mitigated  or  condoned. 
She  stood  related  to  him  by  consanguinity  within  the  forbidden 
degrees.  That  she  had  no  inheritable  blood  for  the  purposes  of 
descent  and  distribution  does  not  alter  the  actual  and  natural 
relation. 

"But  the  Xew  York  statutes  leave  no  room  for  any  reasonable 
doubt.  The  N.  Y.  Penal  Code,  ^  302,  enacts  that  4  persons  being 
within  the  degrees  of  consanguinity,  within  which  marriages  are 
declared  by  law  to  be  incestuous  and  void,  who  shall  intermarry 
with  each  other,  or  who  shall  commit  adultery  or  fornication  with 
each  other,  shall,  upon  conviction,  be  punished,'  etc.  This  enact- 
ment is  taken  from  the  Revised  Statutes  (pt.  4,  chap.  1,  title  5, 
art.  2.  §  L2),  and  its  reference  is  to  the  provision  as  to  marriage. 
Pt.  2,  chap.  8,  title  1,  art.  1,  §  3.  That  declares  marriage.-,  be- 
tween parents  and  children  incestuous  and  void,  and  specially 
includes  illegitimate  as  well  as  legitimate;  children.  Since,  there- 
fore, the  consanguinity  between  father  and  daughter,  although 
the  latter  be  illegitimate,  is  bylaw  declared  to  make  their  mar- 
riage incestuous  and  void,  the  provision  of  the  penal  code  applies 


812  LAW    OF    EVIDENCE    IN    CRIMINAL   CASES. 

to  the  same  relation  and  described  the  crime  of  incest.     Beyond 
its  utter  want  of  merit  the  defense  has  no  foundation  in  the  law." 
People  v.  Lake,  110  K  Y.  61. 
§  531.  Previous  Acts  of  Lascivioiisness  may  be  Shown.— 

The  able  opinion  of  Elliott,  Oh.  J.,  in  State  v.  Markins,  95  Ind. 
464,  IS  Am.  Rep.  733,  is  as  follows :  "The  indictment  charges 
the  appellees  with  having  committed  the  crime  of  incest  on  the 
6th  day  of  March,  1882,  and  the  state  introduced  evidence  of  in- 
cestuous intercourse  on  that  day.  After  the  introduction  of  this 
evidence  the  state  offers  to  prove  that  prior  to  that  time  acts  of 
indecent  familiarity  took  place  between  the  appellees,  and  that 
they  had  been  guilty  of  sexual  intercourse.  At  the  time  the  evi- 
dence was  offered,  the  prosecuting  attorney  stated  to  the  court 
that  the  purpose  in  offering  it  was  not  to  prove  distinct  and  sub- 
stantive offenses,  but  to  prove  lascivious  and  improper  conduct 
between  the  defendants,  prior  to  March  6,  1882.  The  court 
excluded  the  evidence,  and  that  ruling  is  properly  presented  for 
our  consideration. 

The  purpose  for  which  the  evidence  was  offered  having  been 
stated  to  the  trial  court,  the  inference  that  it  was  offered  gener- 
ally, and  without  any  limitation  as  to  the  object  of  the  prosecutor 
in  offering  it,  is  fully  rebutted.  The  question  for  our  decision  is 
therefore  whether  it  was  competent  for  the  purpose  for  which  the 
state  informed  the  court  it  was  offered. 

In  Lovell  v.  State,  12  Ind.  18,  it  was  held  that  evidence  of  acts 
of  sexual  intercourse  subsequent  to  the  time  laid  in  the  indictment 
and  identified  by  the  evidence  introduced  by  the  state,  was  in- 
competent, and  it  is  confidently  asserted  that  the  decision  in  that 
case  governs  the  present.  But  the  cases  are  very  different.  Pre- 
vious acts  of  lascivious  familiarity  would  tend  strongly  to  show 
the  commission  of  the  specific  offense  charged  by  the  state,  for  it 
is  impossible  to  doubt  that  evidence  of  such  a  character  tends  to 
make  it  probable  that  the  parties  did  commit  the  specific  offense 
charged.  Such  evidence  goes  in  proof  of  the  main  offense,  be- 
cause it  is  evidence  of  the  probability  of  its  perpetration.  Where 
the  acts  precede  the  offense,  they  constitute  the  foundation  of  an 
antecedent  probability,  but  where  they  follow  the  main  offense 
their  force  and  effect  are  materially  different.  It  is  one  thing  to 
affirm  that  evidence  of  prior  incestuous  intercourse  is  competent, 
and  another  thing  to  affirm  that  evidence  of  subsequent  sexual 


incest.  813 

intercourse  is  not  competent;  it  is  therefore  not  difficult  to  dis- 
criminate between  the  two  cases. 

It  is  a  rule  of  elementary  logic,  as  well  as  of  rudimentary  law, 
that  evidence,  which  tends  to  establish  facts  rendering  it  antece- 
dently probable  that  a  given  event  will  occur,  is  of  material  rele- 
vancy and  strong  probative  force.  It  is  more  probable  that 
incestuous  intercourse  will  take  place  between  persons  who  have 
conducted  themselves  with  indecent  familiarity  than  between  those 
whose  behavior  has  been  modest  and  decorous.  It  cannot  be 
doubted  that  it  is  competent  to  show  the  previous  intimacy  be- 
tween the  persons  charged  with  the  crime  of  incest,  their  behavior 
toward  each  other,  and  their  acts  of  impropriety  and  indecency. 
If  it  be  proper  to  show  acts  of  indecent  and  lascivious  character, 
then  surely  it  must  be  proper  to  show  the  act  to  which  all  such 
indecent  and  lascivious  acts  lead,  and  in  which  they  will  often 
•culminate.  It  cannot  be  held,  upon  any  principle  of  law  or  logic, 
that  the  state  may  show  acts  of  improper  intimacy  up  to  the  very 
act  of  sexual  intercourse,  and  then  must  stop,  although  the  sexual 
intercourse  is  but  the  usual  result  of  the  previous  lascivious  con- 
duct. If  the  course  of  conduct  tends  to  show  that  the  incestuous 
intercourse  charged  in  the  indictment  did  take  place,  then  surely 
the  culminating  act  of  sexual  commerce  must  be  evidence  of  a 
convincing  character.  It  would  be  a  singular  rule  that  would 
admit  evidence  of  lascivious  conduct,  and  yet  exclude  evidence  of 
the  act,  which  of  all  the  series  supplies  the  strongest  evidence 
that  the  crime  charged  was  one  likely  to  be  committed.  If  the 
.rule  were  that  the  state  might  show  previous  lascivious  conduct, 
.but  must  not  show  an  act  of  sexual  intercourse,  we  should  have 
.the  singular  anomaly  of  a  legal  rule  rejecting  evidence  simply 
because  of  its  strength  and  importance.  The  usual  rule  of  com- 
mon sense,  as  of  law.  is.  that  the  more  material  the  evidence  and 
the  stronger  its  probative  force,  the  greater  the  reason  for  holding 
it  to  be  competent. 

The  intercourse  between  the  sexes  which  constitutes  the  prime 
■element  in  the  offenses  of  adultery,  fornication,  incest  and  seduc 
tion,  can  only  take  place  by  the  concurrence  of  two  persons  of 
opposite  sexes,  and  the  previous  lascivious  conduct  of  the  parties 
is  evidence  of  their  disposition  to  indulge  their  lustful  passions. 
The  probability  that  a  woman  will  yield  to  the  embraces  of  a  man 
.to  whom  she  has  before  submitted,  or  to  whom  sin-  has  for  a  long 


844:  LAW    OF    EVIDENCE    IN    CRIMINAL    CASES. 

time  allowed  improper  familiarities,  is  much  stronger  than  if  it 
appear  that  no  intimacy  had  existed  between  the  parties,  and  the 
wo]  nan's  conduct  has  always  been  modest  and  discreet.  The  dis- 
position of  the  parties  involved  in  the  crime  becomes  an  element 
of  importance,  and  the  disposition  of  the  woman  is  shown  by  her 
conduct  toward  the  man  with  whom  she  joins  in  violating  the  law. 
It  is  but  natural  to  infer  that  a  woman  whose  conduct  has  been 
immodest  and  licentious  will  be  more  likely  to  sin  than  one  whose 
conduct  has  been  modest  and  discreet.  A  truth  recognized  by 
the  ordinary  sense  ^nd  experience  of  mankind  was  well  expressed 
when  it  was  said :  "You  will  more  readily  infer  assent  in  the 
practiced  Messalina,  in  loose  attire,  than  in  the  reserved  and  virt- 
uous Lucretia." 

The  general  rule  undoubtedly  is,  that  one  crime  cannot  be  proved 
in  order  to  establish  another  independent  crime,  but  this  rule  does 
not  apply  to  cases  where  the  chief  element  of  the  offense  consists 
in  illicit  intercourse  between  the  sexes.  The  decisions  all  agree 
that  the  sexes  are  not  within  the  general  rule.  In  the  case  of 
People  v.  Jeruiess,  5  Mich.  305,  it  was  held  that  evidence  of  other 
acts  of  sexual  intercourse  was  competent  in  prosecutions  for 
incest.  The  case  was  fully  argued,  and  the  opinion  is  an  able 
one.  We  quote  from  it  the  following:  "Previous  familiarities, 
not  amounting  to  actual  intercourse,  but  tending  in  that  direction, 
must  have  a  strong  bearing  in  all  cases  of  this  kind;  and  we  can 
discover  no  just  principle  on  which  they  could  have  been  excluded, 
without  setting  at  defiance  the  common  sense  of  mankind.  Such 
evidence  was  given  in  this  case  by  the  father  and  mother  of  the 
girl,  without  objection  from  the  defendant;  and  if  such  familiari- 
ties may  be  shown  because  they  tend  to  prove  actual  intercourse, 
or  to  corroborate  other  evidence  of  such  intercourse,  upon  what 
principle  can  previous  actual  intercourse  be  rejected,  when  offered 
for  the  same  purpose  %  It  is  the  principal  and  most  important  act 
of  familiarity,  to  which  the  others  only  tended." 

The  general  rule  which  governs  the  class  of  cases  to  which  the 
present  belongs  is  thus  stated  in  Lawson  v.  State,  20  Ala.  65,  56 
Am.  Dec  182:  "In  all  cases,  whether  civil  or  criminal,  involving 
a  charge  of  illicit  intercourse  within  a  limited  period,  evidence  of 
acts  anterior  to  that  period  may  be  adduced  in  connection  with,. 
and  in  explanation  of,  acts  of  a  similar  character  occurring  within 
that  period,  although  such  former  acts  would  be  inadmissible  as  inde- 


INCEST.  845 

pendent  testimony,  and  if  treated  as  an  offense,  would  be  barred  by 
the  statute  of  limitations,"  This  statement  of  the  rule  is  substan- 
tially borrowed  from  the  text-writers.  2  Greenl.  Ev.  §  47;  Wharf. 
Crim.  Ev.  §  35.  In  discussing  the  general  subject,  the  supreme 
•court  of  Massachusetts  said:  "The  intent  and  disposition  of  the 
parties  toward  each  other  must  give  character  to  their  relations,  and 
can  only  be  ascertained,  as  all  moral  qualities  are,  from  the  acts  and 
declarations  of  the  parties.  It  is  true,  that  the  fact  to  be  proved 
is  the  existence  of  a  criminal  disposition  at  the  time  of  the  act 
charged;  but  the  indications  by  which  it  is  proved  may  extend, 
and  ordinarily  do  extend,  over  a  period  of  time  both  anterior  and 
subsequent  to  it.  The  rules  which  govern  human  conduct,  and 
which  are  known  to  common  observation  and  experience,  are  to 
be  applied  in  these  cases,  as  in  all  other  investigations  of  fact. 
An  adulterous  disposition  existing  in  two  persons  toward  each 
other  is  commonly  of  gradual  development;  it  must  have  some 
duration  and  does*  not  suddenly  subside.  When  once  shown  to 
exist,  a  strong  inference  arises  that  it  has  had  and  will  have  con- 
tinuance, the  duration  and  extent  of  which  may  be  usually  meas- 
ured by  the  power  which  it  exercises  over  the  conduct  of  the 
parties."  Thayer  v.  TJiayer,  101  Mass.  Ill,  100  Am.  Dec.  110. 
The  court  from  whose  opinion  we  have  quoted  formerly  held  a 
different  doctrine,  and  Mr.  Bishop,  in  the  course  of  a  sharp  criti- 
cism upon  that  holding,  said:  "But  strangely  enough,  the  Massa- 
chusetts court  further  held,  on  an  indictment  for  adultery,  that  if 
the  anterior  familiarities  extend  so  far,  or  are  of  such  character  as 
to  show  adultery  actually  committed  on  this  previous  occasion, 
the  evidence  of  them — that  is,  of  the  previous  adultery — is  not. 
admissible;  according  to  which  doctrine,  if  the  evidence  is  a  little 
weak,  yet  tending  remotely  to  establish  the  crime,  it  may  be  sub- 
mitted to  the  jury;  but  if  it  is  a  little  stronger  and  tends  more 
clearly  to  the  same  result,  it  must  be  excluded."  Bishop,  Stat- 
utory Crimes,  §  680. 

In  State  v.  Bridgman,  49  Vt.  202,  24  Am.  Rep.  124,  very  many 
authorities  are  reviewed,  and  it  was  held,  in  an  opinion  of  much 
force,  that  evidence  of  former  acts  of  sexual  intercourse  is  admis- 
sible. Among  the  latter  cases  declaring  this  general  doctrine 
arc  State  v.  Pippin,  88  K  C.  646,  and  State  v.  Kemp,  87  N.  C. 
538. 

A  wife  is  competentto  testify  against  her  husband  in  all  jurisdic- 


846  LAW    OF    EVIDENCE    IN    CRIMINAL    CASES. 

tions  when  by  statutory  provision  she  is  allowed  to  give  evidence 
against  her  husband  in  prosecutions  for  crimes  committed  by  him 
against  her.  Incest  has  been  held  to  be  a  crime  against  her. 
State  v.  Chambers  (Iowa)  Jan.  17,  1893,  47  Alb.  L.  J.163. 


CHAPTER   LX. 

ADULTERY. 

§  532.   Tlie  Term  Defined. 

533.  Elements  of  the  Crime. 

534.  Presumptive  Evidence  may  le  Sufficient. 

535.  Positive  Proof  never  Required. 

536.  Views  of  Lord  Stowell  on  the  Subject. 

537.  Prior  Offenses  between  the  Parties  may  le  Sliown. 

538.  Admissions  of  Marriage  Competent. 

539.  Adulterous  Disposition  may  be  Shown. 

540.  Birth  of  Child  as  Evidence  of. 

541.  Reputation  for  Chastity  may  he  Shown. 

§  532.  The  Term  Defined. — This  is  the  unlawful  and  voluntary 
sexual  intercourse  of  two  persons  of  opposite  sexes,  one  of  whom 
is  married.  It  is  not  an  offense  at  common  law,  nor  by  statute  in 
England,  and  is  a  statutory  offense  in  only  a  few  of  the  United 
States. 

Either  party  may  he  tried  alone,  and  it  is  not  essential  to  show 
that  both  had  a  guilty  intent, 

On  a  charge  of  "open  and  notorious  adultery  "  the  public  and 
habitual  violation  of  the  law  must  be  shown.  "Living  in  adultery" 
means  more  than  a  single  act  of  adulterous  intercourse. 

Rape  may  lie  also  adultery.  Browne,  ('rim.  L.  31,  citing 
Montana  v.  WMtcomb,  1  Mont.  359,  l;:>  Am.  Rep.  740,  26  Am. 
Rep.  '■'>'■'>.  note;  Com.  v.  Bakeman,  131  Mass.  577,  II  Am.  Rep. 
248;  State  v.  Crowner,  56  Mo.  147;  State  v.  Cutshall,  109  N.  C. 
764;  Smith  v.  State,  39  Ala.  554. 

§  533.  Elements  of  the  Crime. — The  elements  of  the  crime 
are,  1st,  that  there  shall  bo  an  unlawful  carnal  connection;  2d, 
that  the  guilty  party  shall  at  the  time;  be  married;  3d,  that  he  or 
she  shall  willingly  commit  the  offense;  tor  a  woman  who  has  be<  n 
ravished  against  her  will  is  not  guilty  of  adultery.  3  Domat, 
Supp.  du  Droit  Public-,  title  L0, note  L3;  I  Bouvier,  Law  Diet,  7*'>. 
534.  Presumptive  Evidence  may  be  Sufficient. — Although 
presumptive  evidence  alone  is  sufficienl  to  establish  the  lad  of 
adulterous  intercourse,  the  circumstances  must  lead  to  it,  not  only 

847 


$48  LAW    OF    EVIDENCE    IN    CRIMINAL    CASES. 

by  fair  inference  bait  as  a  necessary  conclusion;  appearances  equally 
capable  of  two  interpretations,  one  an  innocent  one,  will  not 
justify  the  presumption  of  guilt.  Evidence  simply  showing  full 
and  frequent  opportunity  for  illicit,  carnal  intercourse,  is  not 
alone  sufficient  to  found  an  inference  that  the  criminal  act  was 
committed.  General  cohabitation  alone,  i.  e.,  the  simple  living  or 
being  together  all  or  most  of  the  time  in  the  same  household, 
apart  from  suspicious  circumstances  characterizing  it,  is  not 
sufficient  to  warrant  an  inference  of  adultery;  there  must  be  some 
accompanying  circumstances  fitted  fairly  to  induce  a  belief  that  it 
was  not  for  a  proper  purpose.     Pollock  v.  Pollock,  71  JN".  Y.  137. 

§  535.  Positive  Proof  never  Required. — In  almost  every 
case  of  adultery,  the  fact  is  inferred  from  circumstances  that 
lead  to  it  by  fair  inferences  as  a  necessary  conclusion.  Pos- 
itive proof  of  the  fact  is  not  required,  and  from  the  nature 
of  the  offense,  not  easily  made.  Circumstances  that  lead  a 
rational  and  just  man  to  a  conclusion  of  guilt  beyond  a  reason- 
able doubt,  are  sufficient  to  authorize  a  conviction.  "A  married 
man  going  into  a  known  brothel  raises  a  suspicion  of  adultery,  to 
be  rebutted  only  by  the  best  evidence.  His  going  there,  and  re- 
maining alone  for  some  time  in  a  room  with  a  common  prostitute, 
is  sufficient  proof  of  the  crime.  The  circumstance  of  a  woman 
going  to  such  a  place  with  a  man  furnishes  proof  of  adultery."  2 
Greenl.  Ev.  p.  31,  §  41.  The  same  author,  in  page  32,  section  11, 
states  that  the  rule  has  been  elsewhere  more  briefly  stated,  to 
require  that  these  be  such  proximate  circumstances  proven,  as  by 
former  decisions,  or  in  their  own  nature  and  tendency,  satisfy  the 
legal  judgment  of  the  court  that  the  criminal  act  has  been  com- 
mitted; and,  therefore,  it  has  been  held  that  general  cohabitation 
excluded  the  necessity  of  proof  of  particular  facts.  Ordinarily,  it 
is  not  necessary  to  prove  the  act  to  have  been  committed  at  any 
particular  or  certain  time  or  place.  It  will  be  sufficient  if  the  cir- 
cumstances are  such  as  to  lead  the  court,  proceeding  with  every 
necessary  caution,  to  this  conclusion,  which  it  has  often  drawn 
between  persons  living  in  the  same  house,  though  not  seen  in  the 
same  bed,  or  in  any  equivocal  situation.  "  The  adulterous  dis- 
position of  the  parties  being  once  established,  the  crime  may  be 
inferred  from  their  afterward  being  discovered  together  in  the 
bedchamber,  under  circumstances  authorizing  •such  inference." 
The  proof  made  in  this  case  was  not  positive  proof  of  the  fact, 


ADULTERY.  849 

but  only  of  such  facts  as  from  which  the  guilt  may  be  inferred. 
Being  in  bed  together  but  once  raises  a  presumption  of  guilt,  but 
the  guilt  might  possibly  be  disproved  by  a  proper  explanation  of 
the  circumstances;  but  being  in  bed  together  at  various  and 
different  times  cannot  be  satisfactorily  explained  consistently  with 
innocence,  and  tends  to  satisfy  the  mind  of  the  guilt  of  the 
accused  beyond  a  reasonable  doubt.  From  the  nature  of  the 
charge,  and  the  evidence  reasonably  to  be  expected  to  sustain  it, 
latitude  in  the  investigation  must  be  allowed.  Baiter  v.  United 
State*,  1  Pinney,  fill. 

Adultery  may  be  established  by  the  evidence  of  parties  who 
saw  the  act  committed,  or  by  proof  of  facts  from  which  inter- 
course may  be  inferred.  On  account  of  the  secret  character  of 
the  offense,  the  former,  direct  proof,  cannot  be  expected;  proof 
that  the  parties  were  seen  in  the  same  bed,  or  occupied  at  night 
the  same  room  in  which  there  was  but  one  bed,  or  lived  together 
as  if  husbanof  and  wife  (but  not  mere  fact  of  a  marriage  ceremony 
between  them)  raises  an  almost  irrebuttable  presumption  of  their 
intercourse;  so  a  wife's  adultery  may  be  proved  by  the  fact  of  the 
birth  of  a  child  without  access  of  her  husband,  or  a  husband's  by 
his  having  a  venereal  disease  too  long  after  marriage  to  have  been 
caused  before.  The  circumstances  from  which  adultery  may  be 
inferred  must  be  such  as  to  satisfy  a  reasonable  and  just  man 
beyond  reasonable  doubt.  Adultery  may  be  proved  by  a  pre- 
ponderance of  evidence;  all  doubt  need  not  be  excluded,  though 
of  course  it  is  not  established  by  facts  which  are  equally  consistent 
with  innocence.  The  proof  must  be  clear,  positive,  satisfactory. 
Two  things  should  be  proved:  (1)  a  criminal  attachment  between 
the  parties,  and  a  mutual  intention  to  indulge  in  intercourse;  and 
(2)  opportunities  to  so  indulge.  If  the  intention  of  both  is 
proved,  and  the  opportunities  are  ample,  adultery  will  be  pre- 
sumed. Opportunities  alone  are  not  enough,  nor  are  opportu- 
nities with  mere  suspicious  circumstances;  nor  is  mere  scandal,  or 
suspicion;  but  a  combination  of  suspicious  facts  may  lead  to  an 
inference  of  guilt  when  separately  they  would  not. 

Stewart,  Marriage  &  Div.  §  246,  citing  the  following  American 
cases:  Eoans  v.  Evans,  41  Cal.  103,  108;  Larrison  v.  Larrison, 
20  K  J.  Eq.  100,  101;  Burchet  v.  Burchet,  Wright  (Ohio)  101; 
Pollock  v.  Pollock,  71  K  Y.  137,  141;  Mosser  v.  Mosser,  29 
Ala.  313,  317;  Inskeep  v.  Inskeep,  5  Iowa,  204,  208;  Freeman  v. 
54 


850  LAW  OF  EVIDENCE  IN  CRIMINAL  CASES. 

Freeman,  31  Wis.  235,  240;  Van  Epps  v.  Van  Epps,  6  Barb. 
320,  323;  State  v.  Way,  6  Yt.  311;  Scroggins  v.  Scroggins,  Wright 
(Ohio)  212;  Langstqf  v.  Zangstqf,  Wright  (Ohio)  148,  149^ 
Masten  v.  Masten,  15  N.  H.  159,  161;  Reemie  v.  Reemie,  4 
Mass.  586;  Wilson  v.  Wilson,  Wright  (Ohio)  128,  129;  Com.  v. 
Shepherd,  6  Binn.  283,  286,  6  Am.  Dec.  449;  Johnson  v.  JbA/i- 
son,  14  Wend.  637,  642;  Worth  v.  iVoWA,  5  Mass.  320;  Mount  v. 
J/btm*,  15  N.  J.  Eq.  162,  163,  82  Am.  Dec.  276;  Cook  v.  Cook, 
32  K  J.  Eq.  475,  477,  478;  Thayer  v.  Thayer,  101  Mass.  Ill, 
113,  114,  100  Am.  Dec.  110;  Berckmans  v.  Berckmans,  16  N. 
J.  Eq.  122,  140;  Mulock  v.  Mulock,  1  Edw.  Ch.  14;  Ferguson  v. 
Ferguson,  3  Sandf .  307;  6"«/'^r  v.  Carter,  62  111.  439,  449;  Smith 
v.  £?m'£A,  5  Or.  186-188;  Chestnut  v.  Chestnut,  88  111.  548,  551; 
IFA^itfc/k  v.  Whitenack,  36  N.  J.  Eq.  474, 477;  Freeman  v.  Free- 
man, 31  Wis.  235,  241;  Jeter  v.  Jeter,  36  Ala.  391;  Clear  v. 
Reasor,  29  Iowa,  327;  JfeAZ<s  v.  Zapeyrollerie,  16  La.  Ann.  4; 
2«ey  v.  Bailey,  Wright  (Ohio)  514,  517;  State  v*  Waller,  80 
N.  C.  401,  402;  Blake  v.  Blake,  70  111.  618,  625;  Hunn  v.  ZTw?m, 
1  Thomp.  &  C.  499,  501;  .5M;  v.  Black,  30  K  J.  Eq.  228,  230; 
Piatt  v.  Plait,  5  Daly,  295,  296;  Derby  v.  Derby,  21  N.  J.  Eq. 
36,  60;  McClung  v.  McClimg,  40  Mich.  493;  Cooper  v.  Cooper,. 
10  La.  249,  252;  J/ay^  v.  Mayer,  21  N.  J.  Eq.  246,  248;  Johnston 
v.  Johnston,  Wright  (Ohio)  454;  Smelser  v.  State,  31  Tex.  95,  96; 
Soper  v.  Soper,  29  Mich.  305,  306;  Overstreet  v.  xSfe^,  3  How. 
(Miss.)  328,  329;  Marble  v.  Marble,  36  Mich.  386,  388;  State  v. 
Crowley,  13  Ala.  172,  174. 

§536.  Views  of  Lord  Stowell  on  the  Subject. —  Lord 
Stowell  in  a  case  still  quoted  with  entire  approbation  says : 

"It  is  a  fundamental  rule  that  it  is  not  necessary  to  prove  the 
direct  fact  of  adultery;  because  if  it  were  otherwise,  there  is  not 
one  case  in  a  hundred  in  which  that  proof  would  be  attainable;  it 
is  very  rarely,  indeed,  that  the  parties  are  surprised  in  the  direct 
act  of  adultery.  Id  every  case,  almost,  the  fact  is  inferred  from 
circumstances,  that  lead  to  it,  by  fair  inference  as  a  necessary 
conclusion;  and  unless  this  were  the  case,  and  unless  this  were  so 
held,  no  protection  whatever  could  be  given  to  marital  rights. 
What  are  the  circumstances  which  lead  to  such  a  conclusion,  can- 
not be  laid  down  universally,  though  many  of  them,  of  a  more 
obvious  nature,  and  of  more  frequent  occurrence,  are  to  be  found 
in  the  ancient  books;  at  the  same  time,  it  is  impossible  to  indicate 


ADULTERY.  851 

them  universally;  because  they  may  be  infinitely  diversified  by 
the  situation  and  character  of  the  parties,  by  the  state  of  general 
manners,  and  by  many  other  incidental  circumstances,  apparently 
slight  and  delicate  in  themselves,  but  which  may  have  most  im- 
portant bearings  in  decisions  upon  the  particular  case.  The  only 
general  rule  that  can  be  laid  down  upon  the  subject,  is  that  the 
circumstances  must  be  such  as  would  lead  the  guarded  discretion 
of  a  reasonable  and  just  man  to  the  conclusion;  for  it  is  not  to  lead 
a  rash  and  intemperate  judgment,  moving  upon  appearances,  that 
are  equally  capable  of  two  interpretations, — neither  is  it  to  be  a 
matter  of  artificial  reasoning,  judging  upon  such  things  differently 
from  what  would  strike  the  careful  and  cautious  consideration  of 
a  discreet  man.  The  facts  are  not  of  a  technical  nature;  they  are 
facts  determinable  upon  common  grounds  of  reason;  and  courts  of 
justice  would  wander  very  much  from  their  proper  office  of  giv- 
ing protection  to  the  rights  of  mankind,  if  they  let  themselves 
loose  to  subtilties,  and  remote  and  artificial  reasonings  upon  such 
subjects.  Upon  such  subjects  the  rational  and  the  legal  interpre- 
tation must  be  the  same."  Lucedvii  v.  Loveden,  2  Hagg.  Consist. 
Eep.  2,  3. 

§  537.  Prior  Offenses  between  the  Parties  may  be  Shown. — 
In  prosecutions  for  adultery,  or  for  illicit  intercourse  of  any  class, 
evidence  is  admissible  of  sexual  acts  between  the  same  parties 
prior  to,  or,  when  indicating  continuous  or  illicit  relations,  even 
subsequent  to,  the  act  specifically  under  trial.  Prior  sexual  at- 
tempts on  the  same  woman  are  admissible,  under  the  same  lim- 
itations, on  a  trial  of  rape.  Whart.  Crim.  Rep.  §  35,  citing  State 
v.  Wallace,  9  N.  H.  518;  State  v.  Potter,  52  Vt.  33;  Com.  v. 
Horton,  2  Gray,  354;  Com.  v.  Lahey,  14  Gray,  91;  Com.  v. 
Call,  21  Pick.  509,  32  Am.  Dec.  284;  Com.  v.  Nichols,  114  Mass. 
285,  19  Am.  Rep.  346;  Com.  v.  Bowers,  121  Mass.  45;  People  v. 
Jenness,  5  Mich.  305;  Searls  v.  People,  13  111.  597;  Looell  v. 
State,  12  Ind.  18;  Statt  v.  Kemp,  ^7  X.  C.  538;  Stati  v.  P'>j>jon. 
88  X.  C.  646;  Lawson  v.  State,  20  Ala.  66,  56  Am.  Dec.  182> 
Richardson  v.  State,  34  Tex.  142;  McClung  v.  McClwng,  4<> 
Mich.  493;  Boddy  v.  Boddy,  30  L  .1.  Mat.  -i:\\  State  v.  Witham, 
72  Me.  531;  State  v.  Bridgman,  49  Yt.  202,  24  Am.  Rep.  124; 
Thayer  v.  Thayer,  Ml  Mass.  Ill,  LOO  Am.  Dec.  lb';  State  v. 
Way,  5  Neb.  283;  Pollock  v.  Pollock,  71  N.  Y.  137;  State  v. 
Waller,  80  X.  (J.  401. 


Sb'2  LAW    OF    EVIDENCE    IN    CRIMINAL    CASES. 

§  53S.  Admissions  of  Marriage  Competent. — Where  a  man 
is  on  trial  for  adultery,  the  allegation  of  the  indictment  that  he  is 
a  married  man  may  be  proved  by  evidence  of  his  own  admissions 
to  that  effect.  Upon  this  question  there  is  some  conflict  of  author- 
ity. In  New  York  {People  v.  Humphrey,  7  Johns.  314)  and  in 
Connecticut  {State  v.  Roswell,  6  Conn.  440)  upon  criminal  charges 
involving  the  same  point,  it  has  been  hold  that  the  marriage  can- 
not be  so  proved.  In  Massachusetts,  in  an  indictment  against  two 
persons  for  lascivious  cohabitation,  one  of  them  being  a  married 
woman,  it  was  held  that  her  admission,  twelve  years  before,  fol- 
lowed by  cohabitation  and  the  birth  of  children,  was  insufficient 
evidence  of  the  marriage  {Com.  v.  Littlejohn,  15  Mass.  163)  and 
according  to  a  citation  in  Cook  v.  State,  11  Ga.  53,  50  Am.  Dec. 
410,  of  a  case  to  which  we  have  not  had  access,  a  similar  decision 
has  been  made  in  one  other  state 

Of  these  cases,  those  which  we  have  examined,  in  so  far  as  they 
rest  upon  authority,  rest  mainly  upon  the  authority  of  Morris  v. 
Miller,  4  Burr.  2057.  This  was  an  action  for  criminal  conversa- 
tion, in  which  the  evidence  that  the  woman  alleged  to  have  been 
debauched  was  the  plaintiff's  wife,  was  the  declaration  of  the  de- 
fendant to  his  landlord  that  she  was  the  plaintiff's  wife,  and  that 
he  had  committed  adultery  with  her.  The  opinion  of  the  court 
was  delivered  by  Lord  Mansfield,  who  said :  "We  are  all  clearly 
of  the  opinion  that  in  this  kind  of  action,  an  action  for  criminal 
conversation  with  the  plaintiff's  wife,  there  must  be  evidence  of 
a  marriage  in  fact;  acknowledgment,  cohabitation  and  reputation 
are  not  sufficient  to  maintain  this  action."  And  he  also  said  : 
"In  prosecutions  for  bigamy,  a  marriage  in  fact  must  be  proved." 

§  539.  Adulterous  Disposition  may  be  Shown. — In  proof 
of  an  unlawful  sexual  intercourse,  the  adulterous  disposition  of 
the  parties  at  the  time  may  be  shown.  To  this  end,  the  anteced- 
ent and  subsecpient  conduct  and  declarations  of  the  parties,  if  it 
has  a  tendency  to  prove  the  fact,  is  admissible.  It  is  a  matter  of 
common  observation,  that  a  criminal  intimacy,  is  usually  of  grad- 
ual development  and  when  established  is  likely  to  continue  be- 
tween the  parties.  The  act  itself  is  the  strongest  evidence  of  the 
existence  of  the  disposition;  and  it  has  been  recently  held  that, 
for  the  purpose  of  proving  it,  an  act  of  adultery  at  another  time 
may  be  shown.  Thayer  v.  Thayer,  101  Mass.  Ill,  100  Am.  Dec. 
Hi).     It  has  long  been  held  that  prior  acts  of  familiarity  were 


ADULTERY.  853 

admissible  to  render  it  not  improbable  that  the  act  might  have 
occurred.     Com.  v.  Merriam,  14  Pick.  518,  25  Am.  Dec.  420. 

The  only  limit  to  this  description  of  evidence  is,  that  it  must  be 
sufficiently  near  in  point  of  time,  and  sufficiently  significant  in 
character,  to  afford  an  inference  of  the  moral  condition  to  be 
proved.  And  this  must  be  fixed  to  a  greater  extent  by  the  dis- 
cretion of  the  judge  who  tries  the  case.  Beers  v.  Jackman,  103 
.Mass.  192. 

k'The  letters  of  the  respondent  to  the  complainant  which  were 
admitted  in  evidence  to  show  a  suspicious  intimacy  between  them 
which  was  necessarily  the  result  of  their  previous  acquaintance 
and  relations;  they  contain  expressions  which  could  hardly  be  used 
between  persons  whose  relations  were  innocent,  and  which  fairly 
lead  to  the  inference  that  the  parties  had  been  guilty  of  criminal 
intercourse.  They  were  therefore  admissible,  within  the  discre- 
tion of  the  presiding  judge."  Sullivan  v.  llarLij,  147  Mass. 
3S7. 

There  has  been  some  difference  of  opinion  as  to  the  extent  to 
which  evidence  of  improper  familiarities,  other  than  that  charged 
in  the  indictment  is  admissible.  On  the  one  hand,  it  has  been 
said  that  in  all  cases,  whether  civil  or  criminal,  involving  a  charge 
of  illicit  intercourse  within  a  limited  period  may  be  adduced  in 
connection  with,  and  in  explanation  of,  acts  of  a  similar  character 
occurring  within  that  period,  although  such  former  acts  would  be 
inadmissible  as  independent  testimony,  and  if  treated  as  an  offense, 
would  be  barred  by  the  statute  of  limitations.  In  point  of  fact, 
as  evidence  of  adultery  is  almost  always  circumstantial,  and  as 
even  when  it  is  direct,  corroborative  evidence  is  admissible  to 
support  it,  it  is  difficult  to  see  how  evidence  of  prior  improper 
familiarities  can  be  rejected.  On  the  other  hand,  evidence  of 
improper  conduct  by  the  defendant,  with  other  parties  than  those 
charged  in  the  indictment,  is  clearly  inadmissible,  and  evidence  of 
guilt  with  the  same  part}'  subsequent  to  the  finding  of  the  indict- 
ment is  inadmissible  unless  to  corroborate  facts  proved  to  have 
taken  place  before.  And  it  is  plain  that  evidence  of  a  propensity 
to  commit  the  particular  offense  is  inadmissible.  Suspicion.-  of 
the  wife,  and  rumors  in  the  neighborhood,  are  both  inadmissible. 
Wliart.  Am.  Crim.  L.  §  2o53. 

§  540.  Birth  of  Child  us  Evidence  of. — Adultery  of  the  wife 
may  be  proved  by  the  birth  of  a  child,  and  non-access  of  tin;  hus- 


854  LAW    OF    EVIDENCE    IN    CRIMINAL    CASES. 

band,  lie  being  out  of  the  realm;  and  if  adultery  is  alleged  to  have 
been  continued,  for  many  years,  and  with  divers  particular  indi- 
viduals, it  is  sufficient  to  prove  a  few  of  the  facts,  with  identity 
of  her  person.  Adultery  of  the  husband,  on  the  other  hand,  may 
be  proved  by  habits  of  adulterous  intercourse,  and  by  the  birth, 
maintenance,  and  acknowledgment  of  a  child.  2  Greenl.  Ev.  §  44, 
citing  Rich  a  prison  v.  Richardson,  1  Hagg.  Eccl.  Rep.  6;  D'Agut- 
lar  v.  D'Aguilar,  1  Hagg.  Eccl.  Rep.  777,  note;  Astley  v.  Astley, 
1  Hagg.  Eccl.  Rep.  719,  720;  Loveden  v.  Loveden,  2  Hagg.  Consist. 
Rep.  2,  4;  Kenrick  v.  Kenrick,  4  Hagg.  Eccl.  Rep.  114, 124,  132, 
Eliot  v.  Eliot,  cited  in  1  Hagg.  Consist.  Rep.  302;  Durant  v. 
Durant,  1  Hagg.  Eccl.  Rep.  767;  Bishop,  Marriage  &  Div.  §  427; 
et  seg. 

§  541.  Reputation  for  Chastity  maybe  Shown. — In  adultery, 
the  chastity  of  a  woman  previous  to  the  time  of  the  commission 
of  the  alleged  offense  is  not  necessarily  in  issue,  and  evidence  of 
previous  acts  of  sexual  intercourse  with  a  man  named  (not  the 
accused)  is  not  admissible.  People  v.  Knapp,  42  Mich.  267,  36 
Am.  Rep.  438.  But  evidence  of  other  acts  of  adultery  between 
the  parties,  commencing  about  the  time  of  the  commission  of  the 
alleged  offense,  is  admissible.  State  v.  Bridgman,  49  Yt.  202,  24 
Am.  Rep.  124;  State  v.  Witham,  72  Me.  531.  And  so  is  evidence 
tending  to  show  subsequent  illicit  intercourse  between  them. 
Baker  v.  United  States,  1  Pinney,  641;  Com.,  v.  Nichols,  114  Mass. 
285,  19  Am.  Rep.  346.  And  evidence  of  the  reputation  for 
chastity,  of  the  woman  with  whom  the  offense  is  alleged  to  have 
been  committed  is  admissible.  Com.  v.  Gray,  129  Mass.  474,  37 
Am.  Rep.  378;  People  v.  Brewer,  27  Mich.  134,  note. 

The  presumptions  of  law  should  be  in  accordance  with  the  gen- 
eral fact;  and  whenever  it  shall  be  true  bf  any  country,  that  the 
women,  as  a  general  fact,  are  not  chaste,  the  foundations  of  civil 
society  will  be  wholly  broken  up.  Fortunately  in  our  own  coun- 
try an  unchaste  female  is  comparatively  a  rare  exception  to  the 
general  rule;  and  whoever  relies  upon  the  existence  of  the  excep- 
tion in  a  particular  case  should  be  required  to  prove  it.  Crozier 
v.  People,  1  Park.  Crim.  Rep.  457;  People  v.  Kenyon,  5  Park. 
Crim.  Rep.  286;  Kenyon  v.  People,  26  X.  Y.  204,  84  Am.  Dec. 
177;  Andre  v.  State,  5  Iowa,  398,  68  Am.  Dec  708;  People  v. 
MUlspaugh,  11  Mich.  278.  The  case  of  West  v.  State,  1  Wis. 
217,  which  seems  to  hold  otherwise,  was  decided  upon  the  phrase- 


ADULTERY.  855 

ology  of  the  Wisconsin  statute,  which  was  thought  to  make  the 
"previous  chaste  character"  of  the  person  seduced  an  ingredient 
in  the  offense,  to  be  made  out  by  proofs.  The  Michigan  statute  is 
very  simple,  and  merely  provides  that,  "  if  any  man  shall  seduce 
and  debauch  an  unmarried  woman  he  shall  be  punished,"  etc. 
Comp.L.  1871,  §  7697;  People  v.  Brewer,  27  Mich.  131. 

A  person's  character  for  chastity,  when  it  is  relevant,  is  not 
shielded  from  inquiry.  It  is  a  disagreeable  subject  of  investiga- 
tion, but  the  law  makes  no  discrimination  between  subjects  that 
are  agreeable  and  those  that  are  disagreeable.  Wood  v.  Gale,  10 
JN".  H.  217,  34  Am.  Dec.  150.  Sexual  crimes  are  not  excepted, 
as  a  peculiar  class,  from  the  operation  of  the  general  rule  that 
admits  relevant  evidence.  On  an  indictment  for  adultery,  evi- 
dence of  previous  improper  familiarities  is  competent.     State  v. 

Wallace,  9  IS".  H.  515;  State  v.  Marvin,  35  N.  H.  22;  Com.  v. 

Mt  rriam,  11  Pick.  518,  25  Am.  Dec.  420;  Com.  v.  Lahey,  11 
Gray,  91.  In  Com.  v.  Ilorton,  2  Gray,  351,  and  Com.  v.  Thrasher, 
11  Gray,  450,  it  was  held  that  although  improper  familiarities 
were  competent,  proof  of  actual  adultery  (other  than  that  charged) 
committed  by  the  same  parties  with  each  other  was  incompetent, 
but  in  Thayer  v.  Thayer,  101  Mass.  Ill,  113,  111,  100  Am.  Dec. 
110,  the  absurdity  of  that  distinction  was  acknowledged,  and  the 
two  cases  which  established  it  were  overruled.  The  court  says  : 
"When  adulterous  disposition  is  shown  to  exist  between  the  par- 
ties at  the  time  of  the  alleged  act,  then  mere  opportunity,  with 
comparatively  slight  circumstances  showing  guilt,  will  be  sufficient 
to  justify  the  inference  that  criminal  intercourse  has  actually  taken 
place.  The  intent  and  disposition  of  the  parties  towards  each 
other  must  give  character  to  their  relations,  and  can  only  be  ascer- 
tained, as  all  moral  qualities  are,  from  the  acts  and  declarations  of 
the  parties.  It  is  true  that  the  fact  to  be  proved  is  the  existence 
of  a  criminal  disposition  at  the  time  of  the  act  charged;  but  the 
indications  by  which  it  is  proved  may  extend  and  ordinarily  do 
extend  over  a  period  of  time  both  anterior  and  subsequent  to  it. 
The  rules  which  govern  human  conduct,  and  which  are  known  to 
common  observation  and  experience,  are  to  be  applied  in  these 
cases  as  in  all  other  investigations  of  fact.  .  .  .  By  the  appli- 
cation of  the  rule  laid  down  in  these  case-  {Com.  v.  Horton,  2 
Gray,  354, and  Com.  v.  Thrasher,  11  Gray,  450)  evidence  tending 
to  establish  an  independent  crime  is  to  be  rejected,  although  ail 


856  LAW    OF   EVIDENCE    IN    CRIMINAL   CASES. 

acts  which  are  only  acts  of  irrmroper  familiarity  are  to  be  admit- 
ted in  proof.  There  is  no  sound  distinction  to  be  thus  drawn. 
There  is  no  difference  between  acts  of  familiarity  and  actual 
adultery  committed,  when  offered  for  the  purpose  indicated, 
except  in  the  additional  weight  and  significance  of  the  latter  fact. 
The  concurrent  adulterous  disposition  of  the  defendant  and  the 
particeps  criminis  cannot  be  shown  by  stronger  evidence  than 
the  criminal  act  itself."  State  v.Zapaye,  57  N.  H.  245,  24  Am. 
Kep.  69. 


CHAPTER  LXI. 

BASTARDY. 

§  542.  The  Term  "  Bastard"  Defined. 

543.  Rule  as  to  Children  Born  in  Wedlock. 

544.  Unchaste  Conduct  of  the  Mother  may  he  SJiown. 

545.  Evidence  of  "  Non-access"  is  Competent. 

54G.   Mother  of  Bastard  may  Prove  Illicit  Intercourse. 

547.  When  Presumption  of  legitimacy  will  Govern. 

548.  Resemblance  as  a  Test  of  Parentage. 

549.  Charge  may  he  Sustained  by  Preponderance  of  Testimony. 

§542.  The  Term  "Bastard"  Defined.— By  the  statutes  of 
New  York,  a  child  is  deemed  a  bastard  who  is  begotten  and  born 
out  of  lawful  matrimony;  or  while  the  husband  of  its  mother 
continued  absent  out  of  the  state,  for  one  whole  year  previous  to 
the  birth  of  the  child,  separate  from  its  mother,  and  leaving  her 
during  that  time  continuing  and  residing  in  the  state;  or  during 
the  separation  of  its  mother  from  her  husband,  pursuant  to  a 
decree  of  any  court  of  competent  authority.  1  Rev.  Stat,  part  1. 
chap.  20,  title  6,  §  1;  1  Stat,  at  L.  595. 

§  543.  Rule  as  to  Children  Born  in  Wedlock.— In  some 
others  of  the  American  states,  as  in  Pennsylvania,  Virginia  and 
North  Carolina,  a  child  born  during  marriage  may  be  proved  to 
be  a  bastard — first,  by  evidence  of  the  husband's  inability;  second, 
by  proof  of  the  non-access  of  the  husband  to  his  wife;  third,  by 
proof  that  the  child  was  born  out  of  due  time;  or,  fourth,  by 
proof  that  the  child  was  born  during  the  wife's  open  cohabitation 
with  another  man,  and  such  child  was  considered  illegitimate  by 
the  family.  Com.  v.  Strich  /•,  1  Browne,  App.  47;  Coin.  v.  Wentz, 
1  Ashm.  269;  State  v.  Pettaway,  10  N.  C.  623;  Howies  v.  Bing- 
ham, 2  Munf.  442,  5  Am.  Dec.  497. 

As  a  general  thing,  it  would  seem  that  the  law  recognizes  a 
child  as  legitimate,  begotten  before  but  born  after  marriage,  on 
the  ground  that  a  man  marrying  a  woman  in  an  advanced  state  of 
pregnancy  thereby  admits  the  child  afterward  born  to  be  hisown, 
and  in  some  .-tales  this  is  conclusive  upon  the  question  of  legiti- 
macy, while  in  others  it  is  not.     But  in  no  case  is  it  regarded  as 

857 


858  LAW    OF    EVIDENCE    IN    CRIMINAL   CASES. 

conclusive  that  a  child  begotten  in  lawful  wedlock  is  legitimate. 
The  presumption  of  law  is  in  favor  of  legitimacy  in  such  cases, 
but  as  a  general  rule,  such  presumption  may  be  rebutted  by  evi- 
dence. Morris  v.  Dames,  3  Car.  &  P.  215;  Reg.  v.  Mansfield,  1 
Q.  B.  618;  Stegall  v.  Stegall,  2  Brock,  250. 

By  the  statutes  of  Maine,  Vermont,  Massachusetts,  Connecticut, 
Ohio,  Illinois,  Indiana,  Maryland,  Virginia,  Georgia,  Alabama, 
Mississippi,  Louisiana,  Kentucky  and  Missouri,  and  possibly  some 
•other  states,  it  is  provided,  that  when  the  parents  of  an  illegitimate 
child  intermarry  after  the  birth  of  the  child,  and  the  father  treats 
it  as  a  legitimate  child,  the  child  shall  thereby  be  adopted  as  such, 
and  shall  be  deemed  for  all  purposes  legitimate  from  the  time  of 
its  birth.  Vide  statutes  of  the  several  states.  This  is  the  law  in 
France  and  in  most  other  European  nations,  and  efforts  have  been 
made  to  get  such  a  provision  into  the  code  of  New  York.  There 
would  seem  to  be  justice  and  mercy  in  the  rule,  and  it  will  prob- 
ably soon  be  the  law  in  all  the  American  states.  Tyler,  Infancy 
<fc  Coverture,  232. 

§  544.  Unchaste  Conduct  of  the  Mother  may  he  Shown. — 
In  a  case  of  this  kind,  where  the  only  question  is  that  of  pater- 
nity, it  should  always  be  allowable  to  show  unchaste  conduct  with 
a  man  other  than  the  defendant,  and  especially  if  the  circum- 
stances are  such  as  not  to  preclude  the  possibility  that  the'  other 
was  the  father  of  the  child.     State  v.  Carver,  65  Iowa,  53. 

§  545.  Evidence  of  "Non-Access"  Competent.— The  ancient 
rule  of  the  common  law  was,  that  the  husband  must  be  presumed 
to  be  the  father,  if  he  was  within  the  realm,  during  any  part  of 
the  time,  within  the  extreme  limits  of  the  period  allowed  for  ges- 
tation. This  rule  has  long  since  been  repudiated  by  the  courts, 
as  not  consistent  either  with  reason  or  common  sense.  For  other 
evidence  of  the  non-access  of  the  husband,  is  frequently  as  strong 
and  satisfactory  to  show  the  actual  impossibility  that  the  husband 
could  have  been  the  father  of  the  child.  Nor  is  it  necessary  that 
the  evidence  should  be  such  as  to  render  it  impossible  that  sexual 
intercourse  should  have  taken  place  between  the  husband  and 
wife.  It  is  sufficient  if  it  proves,  beyond  a  reasonable  doubt,  that 
no  such  intercourse  did  take  place.  Van  Aernam  v.  Van  Aernam, 
1  Barb.  Ch.  377. 

§  546.  Mother  of  Bastard  may  Prove  Illicit  Intercourse. 
The  mother  of  the  alleged  bastard  was  a  married  woman,  whose 
husband  was  living  at  the  time  of  the  alleged  illicit  intercourse 


BASTARDY.  859 

nnd  the  birth  of  the  child.  And  while  she  is,  from  the  necessity 
of  the  case,  a  competent  witness  to  prove  the  illicit  intercourse, 
and  who  is  in  fact  the  father  of  the  child,  she  is  not  competent  as 
a  witness  to  establish  the  non-access  of  the  husband;  nor  his 
absence  from  the  state;  nor  any  fact  which  may  be  proved  by 
other  testimony.  This  seems  to  be  the  well  settled  rule.  2 
Stark.  Ev.  404;  Phil.  Ev.  87;  Greenl.  Ev.  345;  Cowen's  &  Hill's 
Notes,  153,  1555,  and  cases  there  cited.  Lord  Mansfield  held 
that  it  was  a  rule  founded  in  decency,  morality  and  policy,  that 
parties  should  not  be  permitted  to  say  after  marriage  that  they 
had  no  connection;  while  Lord  Hardwicke  placed  the  incompetency 
of  the  wife  on  the  ground  of  the  interest  of  the  husband,  in  charg- 
ing another  with  the  support  of  the  child.  People  v.  Ontario 
Pooi'  Overseers,  15  Barb.  292. 

The  declarations  or  accusations  of  the  mother  in  such  cases 
have  never  been  considered  by  our  courts  as  independent  facts 
.showing  the  fatherhood  of  the  child,  but  as  corroborative  only  of 
her  testimony  in  court  to  the  same  effect.  Booth  v.  Hart,  43 
•Conn.  480;  Bobbins  v.  Smith,  47  Conn.  182.  This  kind  of  cor- 
roboration was  at  first  required  by  statute  where  the  woman  was 
the  prosecutrix.  For  nearly  a  century  and  a  half  the  woman  was 
allowed  to  testify  under  oath,  while  the  privilege  was  denied  to 
the  reputed  father.  But  at  the  same  time  and  for  his  security 
against  a  possibly  false  oath,  the  statute,  in  addition  to  the  oath 
of  the  mother,  required  constancy  in  her  accusation  and  that  she 
should  be  put  to  discovery  at  the  time  of  travail.  Chaplin  v. 
Hartshorne,  0  Conn.  44.  This  was  regarded  as  a  condition  pre- 
cedent to  a  recovery  until  the  law  allowed  all  parties  in  interest 
in  all  cases  to  testify.  The  statute  still  retains  essentially  the 
.same  provisions  as  to  corroboration,  but  it  is  now  not  a  condition 
indispensable  to  a  recovery,  but  can  be  used  to  make  a  prima 
facie  case,  and  to  throw  the  burden  of  exculpation  on  the  defend 
ant.  But  whether  the  prosecutrix  rests  hercaseon  preponderance 
•of  proof  or  avails  herself  of  the  provision  for  a  prima  facie  case, 
her  constancy  of  accusation  is  still  regarded  as  confirmatory  only 
of  her  testimony.  We  readily  concede  however  that  it  is  a.  most 
natural  and  effective  corroboration.  We  may  adopt  the  statement 
made  in  the  brief  tor  the  defendant,  and  which  is  used  to  support 
the  argument  we  are  considering,  "thai  as  matter  of  fact  the 
female,  when  her  pregnancy  becomes  apparent  to  her  friends  and 


800  LAW    OF    EVIDENCE    IN    CRIMINAL    CASES. 

acquaintances  (and  apparent  it  must  become)  will  be  called  upon 
by  everybody  to  name  the  father."  We  may  even  go  further  and 
concede  that  her  declarations  in  some  circumstances  are  in  some 
sense  illustrative  of  her  condition  and  conduct,  and  yet  we  fail  to 
see  any  analogy  between  such  declarations  and  those  now  in  ques- 
tion, made  by  one  not  accused  at  all  by  the  prosecutrix,  but  only 
by  the  defendant  for  his  own  exculpation.  Benton  v.  Starr,  58 
Conn.  285. 

The  rule  undoubtedly  is,  that  a  married  woman  cannot,  as  a 
witness,  bastardize  her  offspring.  It  is  against  public  policy,  and 
would  tend  to  the  dissolution  of  marriages,  and  break  up  the 
peace  of  families.  The  very  idea  is  unnatural.  The  statute  only 
provides  that  after  the  bastardy  is  established,  she  may  designate 
the  father,  ex  necessitate;  and  such  was  the  common  law.  Peojjle 
v.  Ontario  Poor  Overseers,  15  JBarb.  290. 

§  547.  When  Presumption  of  Legitimacy  will  Govern. — 
The  legal  presumption  is  that  a  child  born  subsequent  to  the  mar- 
riage of  its  mother,  although  begotten  before  that  time,  is  the 
child  of  the  husband.  And  the  admission  by  a  third  person  that 
the  child  was  begotten  by  him,  and  not  by  the  subsequent  hus- 
band of  the  mother,  is  not  evidence  to  rebut  such  legal  presump- 
tion, in  a  suit  to  annul  the  marriage  upon  the  ground  that  the 
consent  of  the  husband  to  the  marriage  contract  was  obtained  by 
fraud.     Montgomery  v.  Montgomery,  3  Barb.  Ch.  132. 

§  548.  Resemblance  as  a  Test  of  Parentage. — The  learned 
author  of  "Beck's  Medical  Jurisprudence"  says:  "It  has  been 
suggested  that  the  resemblance  of  a  child  to  the  supposed  father 
might  aid  in  deciding  doubtful  cases.  This,  however,  is  a  very 
uncertain  source  of  reliance.  We  daily  observe  the  most  striking 
differences  in  physical  traits  between  parent  and  child,  while  indi- 
viduals born  in  different  parts  of  the  globe  have  been  mistaken 
for  each  other.  And  even  as  to  malformations,  although  some 
remarkable  resemblances  in  this  respect  have  been  noticed  between 
father  and  child,  yet  we  should  act  unwisely  in  relying  too  much 
on  them.  There  is  however,  a  circumstance  connected  with  this, 
which,  when  present,  should  certainly  defeat  the  presumption 
that  the  husband  or  paramour  is  the  father  of  the  child,  and  that 
is  when  the  appearance  of  the  child  evidently  proves  that  its 
father  must  have  been  of  a  different  race  from  the  husband  or 
paramour,  as  when  a  mulatto  is  born  of  a  white  woman  whose 


BASTARDY.  801 

husband  is  also  white,  or  of  a  black  woman  whose  husband  is  a 
negro."  In  a  case  where  the  question  of  race  is  concerned,  the 
child  may  be  exhibited  for  the  purpose  of  showing  that  it  is  or 
is  not  of  the  race  of  its  alleged  father.  Warlick  v.  White,  76 
N.  C.  175;  liana  wait  v.  State,  64  Wis.  81,  51  Am.  Kep.  5S8. 

In  North  Carolina  the  supreme  court  of  that  state  holds  that 
.such  exhibitions  may  properly  be  made.  See  State  v.  Woodruff, 
67  K  C.  80;  and  State  v.  Britt,  78  K  C.139;  Warlick  v.  White, 
76  N.  C.  175;  and  State  v.  Bowles,  52  N".  C.  579.  The  same  was 
held  by  the  supreme  court  of  Iowa  in  State  v.  Smith,  51  Iowa, 
104,  37  Am.  Hep.  192.  In  the  last  case  the  child  was  over  two 
years  old;  but,  in  the  case  of  State  v.  Danforth,  -IS  Iowa,  43,  30 
Am.  Rep.  387,  the  same  court  held  it  was  improper  to  exhibit  to 
the  jury  a  child  only  three  months  old.  In  Eddy  v.  Gray,  4  Allen, 
135;  Jones  v.  Jones,  45  Md.  Ill;  Keniston  v.  Rowe,  16  Me.  38, 
the  courts  hold  that  testimony  of  witnesses  that  the  child  looks 
like  or  resembles  tin  appearance  the  person  charged  to  be  the 
father  is  not  admissible;  and  in  Reitz  v.  State,  33  Ind.  187,  and 
Risk  v.  State,  19  Ind.  l^'l,  it  was  held  error  to  permit  the  prose- 
cution to  give  the  child  in  evidence,  so  that  the  jury  might  com- 
pare it  with  the  defendant,  who  was  present  in  court. 

In  the  Douglas  Case,  cited  in  Wills,  Circ.  Ev.  (5th  Am.  ed.) 
117,  Lord  Mansfield  is  reported  as  saying:  "I  have  always  con- 
sidered likeness  as  an  argument  of  a  child's  being  the  son  of  a 
parent;  and  the  rather  as  the  distinction  between  individuals  in 
the  human  species  is  more  discernible  than  in  other  animals.  A 
man  may  survey  ten  thousand  people  before  he  sees  two  faces 
perfectly  alike,  and  in  an  army  of  a  hundred  thousand  men  every 
one  may  be  known  from  another.  If  there  should  be  a  likeness 
of  feature,  there  may  be  a  discriminancy  of  voice,  a  difference  in 
the  gestures,  the  smile,  and  various  other  things,  whereas  a  family 
likeness  runs  generally  through  all  these,  for  in  everything  there 
is  a  resemblance;  as  of  features,  size,  attitude  and  action."  See 
Uanawalt  v.  State,  64  Wis.  84. 

§  549.  Charge  may  be  Sustained  by  Preponderance  of 
Testimony. — The  charge  of  bastardy  may  be  sustained  by  a  pre- 
ponderance of  the  testimony.  Mann  v.  People,  35  [11.467;  Mo- 
loney v.  People,  38  III.  62;  Allison  v.  People,  45  [11.37;  McCoy 
v.  People,  65  III.  439;  People  v.  Christman,  66  111.  L62;  McFar- 
land  v.  People,  72  III.  368;  Lewis  v.  People,  82  III.  L04;  State  v. 


862  LAW    OF    EVIDENCE    IN    CRIMINAL    CASES. 

McGlothlen,  56  Iowa,  544;  Richardson  v.  Burleigh,?*  Allen,  479; 
Young  v.  Makepeace,  103  Mass.  50;  People  v.  Collier,  1  Mich. 
140;  Semon  v.  People,  42  Mich.  141;  State  v.  Nichols,  29  Minn. 
357;  State  v.  Rogers,  79  K  C.  609;  Stovall  v.  ,S2ate,  9  Baxt.  597. 
In  Wisconsin,  they  hold  that  the  charge  must  be  proved  beyond 
a  reasonable  doubt.  Baker  v.  State,  47  Wis.  Ill;  Van  Tassel  v. 
State,  59  Wis.  351.     Bailey,  Conflict  of  Judicial  Decisions,  p.  85. 

Note. — Effect  of  subsequent  marriage  of  the  parents  on  antenuptial  issue. 

The  general  current  of  authority  favors  the  doctrine  that  where  an  illegiti- 
mate child  has  been  legitimated  by  the  subsequent  marriage  of  its  parents 
according  to  the  laws  of  the  state  or  country  where  the  marriage  takes  place, 
and  the  parents  are  domiciled,  such  legitimacy  follows  the  child  wherever  it 
may  go.     Miller  v.  Miller,  91  N.  Y.  315. 

Each  state  has  the  right  to  determine  the  status  of  its  own  citizens;  the  domi- 
cil  decides  which  state  has  the  right.  Strader  v.  Graham,  51  U.  S.  10  How.  93, 
13  L.  ed.  342;  Story,  Confl.  L.  141,  §  106. 

Foreign  jurists  generally  maintain  that  the  question  of  legitimacy  or  illegiti- 
macy is  to  be  decided  exclusively  by  the  law  of  the  domicil  of  origin. 

It  seems  admitted  by  foreign  jurists,  that  as  the  validity  of  the  marriage  must 
depend  upon  the  law  of  the  country  where  it  is  celebrated,  the  status  or  condi- 
tion of  the  offspring,  as  to  legitimacy  or  illegitimacy,  ought  to  depend  on  the 
same  law,  so  that  if  by  the  law  of  the  place  of  the  marriage  the  offspring, 
although  born  before  marriage,  would  be  legitimate,  they  ought  to  be  deemed 
legitimate  in  every  other  country  for  all  purposes  whatever,  including  heirship 
of  immovable  property.     Story,  Confl.  L.  §  93. 

Legitimacy  or  illegitimacy  are  among  universal  personal  qualifications,  and 
the  laws  of  the  state  affecting  all  these  personal  qualities  of  its  subjects  travel 
with  them  wherever  they  go  and  attach  to  them  in  whatever  country  they  may 
be  resident.     Wheaton,  Law  of  Nations,  172. 

When  an  illegitimate  child  has,  by  the  subsequent  marriage  of  his  parents, 
become  legitimate  by  virtue  of  the  laws  of  the  state  or  country  where  such 
marriage  took  place,  and  the  parents  were  domiciled,  it  is  therefore  legitimate 
everywhere,  and  entitled  to  all  the  rights  flowing  from  that  status,  including 
the  right  to  inherit.     Miller  v.  Miller,  91  N.  Y.  315. 

In  cases  of  intestacy  personal  property  is  distributed  according  to  the  law  of 
the  place  of  the  domicil  of  the  intestate.  Parsons  v.  Lyman,  20  N.  Y.  103, 112; 
Moultrie  v.  Hunt,  23  N.  Y.  394;  Story,  Confl.  L.  §  380. 

But  real  estate  in  such  cases  descends  according  to  the  law  of  the  place 
where  it  is  situated.  White  v.  Howard,  46  N.  Y.  144-159;  Story,  Confl.  L. 
§424. 

In  this  case  it  was  held  that  an  antenuptial  child  born  in  Scotland,  of  persons 
domiciled  there,  could  not  inherit  lands  in  England,  though  by  the  law  of  Scot- 
land the  child  had  been  legitimated  by  the  subsequent  intermarriage  of  the  parents. 
The  rule  laid  down  in  this  case  has  been  uniformly  followed  in  England.  Don's 
Estate.  4  Drew.  197;  lie  Wright,  2  Kay  &  J.  595;  Be  Wilson's  Trusts,  L.  R.  1  Eq. 
Cas.  247;  Shaw  v.  Gould,  L.  R.  3  H.  L.  55. 

An  antenuptial  child  was  born  in  South  Carolina,  in  which  state  the  parents 


BASTAKDY.  863- 

intermarried,  but  at  that  time  their  intermarriage  did  not  legitimate  the  child. 
Subsequently,  the  three  became  citizens  of  Mississippi,  where  antenuptial  chil- 
dren were  legitimated  by  the  subsequent  intermarriage  of  the  parents.  The  father 
died  intestate.  It  was  held  that  the  status  of  the  child  was  fixed  by  the  domi- 
cil  of  its  origin ;  where  it  was  illegitimate,  it  so  remained,  and  could  uot  inherit. 
Smith  v.  KeUey,  23  Miss.  167. 

A  child  born  in  Scotland,  of  parents  domiciled  there,  who  at  the  time  of  his 
birth  were  not  married,  but  who  afterwards  intermarried  in  Scotland  (there 
being  no  lawful  impediment  to  their  marriage,  either  at  the  time  of  the  birth 
or  afterwards),  though  legitimate  by  the  law  of  Scotland,  cannot  take,  as  heir, 
lands  of  his  father  in  England.     Birtwhistle  v.  Vardill,  7  Clark  &  F.  895. 

The  English  judges,  in  Doe  v.  Vardill,  5  Barn.  &  C.  438,  did  not  deny,  but 
admitted,  that  the  effect  of  the  Scotch  marriage  in  that  case  was  to  legitimatize 
the  previous  born  issue,  and  that,  being  legitimate  in  Scotland,  the  country  of 
his  domicil,  he  was  also  legitimate  in  England.  But  they  held,  as  before  stated, 
that  a  person  who  inherits  land  in  England  must  not  only  be  legitimate,  but 
must  have  been  actually  born  in  wedlock.  Boss  v.  Boss,  129  Mass.  252-254; 
Miller  v.  Miller,  91  N.  Y.  321,  322. 

In  addition  to  the  cases  cited  in  Boss  v.  Boss  and  Miller  v.  Miller,  supra,  and 
in  the  notes  to  Stewart  v.  Stewart,  31  N.  J.  Eq.  407,  and  to  Bussom  v.  Forsyth, 
32  N.  J.  Eq.  285,  a  few  recent  cases  are  appended;  Atkinson  v.  Anderson,  L.  R. 
21  Ch.  Div.  100;  Be  Grove,  L.  R.  40  Ch.  Div.  216;  Keegan  v.  Geraghty,  101  III. 
26;  Slolte  v.  Doering,  112  111.  234;  Sunderland's  Estate,  60  Iowa,  732;  Scott  v. 
Key,  11  La.  Ann.  232;  Caballero's  Succession,  24  La.  Ann.  573;  Stack  v.  Stack,  6- 
Dem.  280;  Dayton  v.  Adkisson,  4  L.  R.  A.  488,  45  X.  J.  Eq.  603,  note. 

The  question  involved  was  elaborately  discussed  in  England,  in  Doe  v.  Var- 
dill, 5  Barn.  &  C.  438,  sub  nom.  Birtwhistle  v.  Vardill,  2  Clark  &  F.  571,  7 
Clark  &  F.  895;  in  New  York,  in  Miller  v.  Miller,  91  N.  Y.  321;  and  in  Massa- 
chusetts, in  Boss  v.  Ross,  129  Mass.  252.  In  the  latter  case  Chief  Justice  Gray 
cites  and  comments  upon  every  case  up  to  that  date  (1880)  and,  after  an 
exhaustive  discussion  of  the  whole  subject,  comes  to  the  conclusion  that  the 
particular  reasons  that  influenced  the  English  court  in  holding,  in  Doe  v.  Var- 
dill, that  an  heir  to  land  in  England  must  be  actually  born  in  wedlock,  do  not 
apply  in  this  country,  and  that  a  person  declared  to  be  a  legitimate  child  of 
another,  by  the  law  of  the  state  of  the  domicil,  must  be  held  to  have  all  the 
rights  of  a  legitimate  child  wherever  he  goes. 

An  examination  of  these  cases  will  show  that  the  contrary  result  in  England 
was  attempted  to  be  justified  by  the  language  of  the  statute,  so-called,  of 
Merton,  20  Hen.  III.  chap.  9,  which,  it  was  claimed,  negatively  enacted  that 
the  English  heir  must  be  born  in  lawful  wedlock.  Lord  Brougham,  in  2  Clark 
&  F.  582,  and  again,  in  7  Clark  &  F.  914,  combats  this  position  with  arguments 
that  the  courts  of  New  York  and  Massachusetts  seemed  to  think  unanswerable. 
Dayton  v.  Adkisson,  4  L.  R.  A.  488,  45  N.  J.  Eq.  603. 

The  relation  of  husband  and  wife  being  a  status  based  upon  the  contract  of 
the  parties,  and  recognized  by  all  Christian  nations,  the  validity  of  that  con- 
tract, if  not  polygamous,  nor  incestuous,  is  governed  by  the  law  of  the  place 
of  the  contract;  this  status,  once  legally  established,  should  be  recognized 
everywhere  as  fully  as  if  created  by  the  law  ;>f  the  domicil;  and  therefore  any 
such  marriage,  valid  by  the  law  of  the  place  where  it  is  contracted,  is  valid 
everywhere  to  all  intents  and  effects,  civil  or  criminal,  including  the  settlement 


S6i  LAW    OF    EVIDENCE    IN    CRIMINAL    CASES. 

of  the  wife  and  children,  her  right  of  dower,  and  their  legitimacy  and  capacity, 
to  inherit  the  father's  real  estate.  Parsons,  Ch.  J.,  in  Greenwood  v.  Curtis,  6 
Mass.  358,  377-379;  Medway  v.  Needham,  16  Mass.  157;  West  Caml/ridge  v.  Lex- 
ington, 1  Pick.  506;  Putnam  v.  Putnam,  8  Pick.  433;  Corn.  v.  Lane,  113  Mass. 
458;  Bullock  v.  Bullock,  122  Mass.  3;  Milliken  v.  Pratt,  125  Mass.  380,  381. 

Under  the  provisions  of  the  celebrated  "Code  Napoleon,"  enacted  in  1804, 
and  substantially  adopted  in  many  of  the  American  states,  humane  regulations 
as  to  legitimacy  will  be  found  established.  No.  331  is  in  the  following  lan- 
guage: 

Children  born  out  of  wedlock,  other  than  such  as  are  the  fruit  of  an  incestu- 
ous or  adulterous  intercourse,  may  be  legitimated  by  the  subsequent  marriage 
of  their  father  and  mother,  whenever  the  latter  shall  have  legally  acknowledged 
them  before  their  marriage,  or  shall  have  recognized  them  in  the  act  itself  of 
celebration.     The  germ  of  this  enactment  dates  back  to  the  Roman  law. 

A  natural  son  born  of  a  free  woman,  with  whom  marriage  is  not  prohibited, 
will  become  subject  to  the  power  of  the  father  as  soon  as  the  marriage  instru- 
ments are  drawn  as  the  Constitution  directs;  which  allows  the  same  benefit  to 
those  who  are  born  before  marriage  as  to  those  who  are  born  subsequent 
thereto.     Cooper,  Justin.     Be  Legitimatione,  lib.  1,  title  10,  §  13. 

A  charge  of  illegitimacy  must  be  supported  by  direct  and  irrefutable  evi- 
dence.    It  must  be  conclusively  proved.     Caujolle  v.  Feme,  23  N.  Y.  90. 

As  to  the  marriage  at  common  law,  and  the  evidence  tending  to  prove  it,  see 
Hebblethwaile  v.  Hepworth,  98  111.  132;  Port  v.  Port,  70  111.  486;  Caujolle  v. 
Ferrie,  23  N.  Y.  107;  2  Greenl.  Ev.  §  4G2;  1  Bishop,  Mar.  &  Div.  §§  13,  457, 
note,  1521;  Stoltz  v.  Doering,  112  111.  234. 

The  law  is  unwilling  to  bastardize  children,  and  throws  the  proof  on  the 
party  who  alleges  illegitimacy;  and,  in  the  absence  of  evidence  to  the  contrary, 
a  child,  eo  nomine,  is  therefore  a  legitimate  child.  Fielder  v.  Fielder,  2  Hagg. 
Consist.  Rep.  197,  4  Eng.  Eccl.  Rep.  527;  Wilkinson  v.  Adam,  1  Ves.  &  B.  422. 

In  Yowles  v.  Young,  13  Yes.  Jr.  145,  Lord  Chancellor  Erskine  said,  in  refer- 
ence to  proof  of  an  actual  marriage,  that  the  evidence,  especially  in  the  case  of 
obscure  families,  must  be  very  slight.  As  sustaining  the  same  rule,  may  also 
•be  cited  Starr  v.  Peck,  1  Hill,  270;  and  the  qualification  of  that  case,  as  made 
in  Cheney  v.  Arnold,  15  N.  Y.  345,  does  not  weaken  its  authority  on  the  ques- 
tion of  the  duty  of  a  court  to  presume  matrimony,  when  the  parties  have 
cohabited,  and  there  are  circumstances  from  which  a  contract  may  be  inferred. 
Caujolle  v.  Ferrie,  23  N.  Y.  90. 

At  common  law  a  bastard  has  no  right  of  inheritance.  In  the  eyes  of  the 
law,  bastards  are  not  regarded  as  children  for  civil  purposes.  1  Bl.  Com.  p. 
458,  in  discussing  the  rights  of  bastards,  says:  "  The  rights  are  very  few, 
being  only  such  as  he  can  acquire,  for  he  can  inherit  nothing,  being  the  son  of 
uobody,  and  sometimes  called  filius  nullius,  sometimes  filius  populi.  In  Black- 
'<ur,s  v.  Milne,  82  111.  505,  it  was  held  that  the  common  law  rule  which  excluded 
illegitimate  children  from  inheriting  was  in  force  in  that  state. 

Words  and  terms  having  a  precise  and  well  settled  meaning  in  the  jurispru- 
dence of  a  country  are  to  be  understood  in  the  same  sense  when  used  in  its 
statutes,  unless  a  different  meaning  is  unmistakably  intended.  The  word 
"illegitimate,"  when  used  in  this  connection,  has,  by  the  common  law,  and  the 
law  of  this  state,  a  well  defined  meaning,  which  is,  begotten  and  born  out  of 
wedlock.     1  Rev.  Stat.  641,  §  1;  2  Kent,  Com.  208,  209;   1  Bl.  Com.  454,  455. 


BASTARDY.  805 

The  so-called  "  Statute  of  Merton." 

The  Statute  of  Merton  was  enacted  at  the  priory  of  Merton,  in  Surrey,  in  the 
year  1236.  It  is  worthy  of  remark,  that  the  famous  Statute  of  Merton,  20  Hen. 
III.  chap.  9,  is,  in  fact,  not  a  statute,  but  a  mere  entry  on  the  minutes  of 
Parliament  of  a  refusal  by  the  English  lords  to  assimilate  the  laws  of  England 
to  that  of  other  civilized  countries,  by  affirmatively  declaring  that  the  marriage 
of  the  parents  subsequent  to  the  birth  rendered  the  child  legitimate.  Dayton  v. 
Ad/cisson,  4  L.  R.  A.  488,  45  N.  J.  Eq.  603. 

Before  and  during  the  reign  of  Henry  III.,  if  it  was  alleged  that  the  person 
claiming  as  heir  was  illegitimate,  a  writ  was  issued  to  the  archbishop,  or  bishop, 
commanding  that  inquiry  and  return  upon  this  issue  be  made  to  the  king  or  his 
justices.  1  Reeves,  Hist.  chap.  3,  168.  By  the  canons  of  the  church,  the 
rule  of  the  Roman  law,  the  subsequent  intermarriage  of  parents  legitimated 
antenuptial  children,  and  the  ecclesiastics  were  inclined  to  return  according  to 
the  canons  of  their  church,  and  contrary  to  the  common  law. 

At  the  Parliament  of  Merton  the  ecclesiastics  endeavored  to  enact  the  rule  of 
their  church,  but  "all  the  earls  and  barons,  with  one  voice,  answered  that  they 
would  not  change  the  laws  of  England  which  had  hitherto  been  used  and 
approved."  1  Bl.  Com.  19,  456;  2  Kent,  Com.  209.  No  change  whatever  was 
made  at  Merton;  and,  thereafter,  the  ecclesiastics  were  required  to  return  the 
facts,  whether  the  claimant  was  begotten  and  born  out  of  wedlock,  and  judg- 
ment was  rendered  by  the  courts  according  to  the  common  law.  1  Reeves, 
Hist.  chap.  3,  169. 

Bracton,  an  ecclesiastic,  as  well  as  lawyer,  who  wrote,  it  is  supposed,  in  the 
time  of  Henry  III.,  in  discussing  the  effect  of  the  legitimation  of  antenuptial 
children  by  the  subsequent  intermarriage  of  their  parents,  said:  "It  follows  to 
consider  how  the  illegitimate  are  legitimated,  and  it  is  to  be  known,  that  if 
anyone  has  natural  children  by  any  woman,  and  afterwards  contracts  marriage 
with  her,  the  children  already  born  are  legitimated  by  the  subsequent  marriage, 
and  are  reckoned  fit  for  all  lawful  acts,  nevertheless  only  for  those  which 
regard  the  sacred  ministry,  but  they  are  not  legitimate  for  those  which  regard 
the  realm,  nor  are  they  adjudged  to  be  heirs  who  can  succeed  to  their  relatives, 
on  account  of  a  custom  of  the  realm,  which  is  of  a  contrary  import."  Chap. 
29,  f.  Go,  b.  or  vol.  1,  p.  503,  of  the  Lords  Commissioners'  edition. 

It  may  be  safely  asserted  that  the  decisions  of  the  English  courts  rest  on  the 
common  law.  Fenton  v.  Livingstone,  5  Jur.  N.  6.  pt.  1,  p.  1183,  holds  that  the 
Statute  of  Merton  is  only  declaratory  to  the  common  law. 

But  it.  is  not  very  material  whether  they  rest  on  the  common  law  or  the  early 
statutes,  because  the  English  statutes  enacted  before  the  settlement  of  this 
country  are  a  part  of  its  common  law.  Bogardus  v.  Trinity  Church,  4  Paige, 
198;  1  Kent,  Com.  473. 

The  principles  supposed  to  be  incorporated  in  the  so-called  Statute  of  Merton 
are  fully  recognized  by  special  legislation  in  the  following  states  are  summar- 
ized by  Snyder  in  his  Geography  of  Marriage,  as  follows: 

In  Arizona,  the  children  of  a  man  aud  woman  living  together  as  man  and 
wife,  or  of  persons  living  together,  who  .subsequently  marry,  are  legitimate. 

In  Florida,  Iowa,  Minnesota,  Montana,  Nevada,  Oregon,  Pennsylvania  and 
Washington,  children  born  out  of  wedlock  become  legitimate  by  the  subsequent 
marriage  of  their  parents. 
55 


866  LAW  OF  EVIDENCE  IN  CRIMINAL  CASES. 

In  Connecticut,  where  the  parents  of  children  horn  out  of  wedlock  subse- 
quently marry,  and  recognize  such  children  as  theirs,  they  shall  be  deemed 
legitimate.     Stat.  1876. 

In  Virginia  and  West  Virginia  children  born  out  of  wedlock,  whose  parents 
subsequently  marry,  if  recognized  by  the  father  before  or  after  marriage,  shall 
be  deemed  legitimate. 

In  New  Hampshire,  where  the  parents  afterwards  marry  and  recognize  them, 
they  shall  inherit  as  if  they  were  legitimate. 

In  Illinois,  Indiana,  Massachusetts,  Ohio,  Vermont,  Wisconsin  and  Wyoming 
a  child  born  out  of  wedlock,  whose  parents  shall  subsequently  marry,  and 
whose  father  acknowledges  such  child,  shall  be  deemed  legitimate. 

In  New  Mexico,  children  legitimated  by  a  subsequent  marriage  of  their  par- 
ents are  as  direct  heirs  as  legitimate  children,  with  the  exception  of  the  right  of 
primogeniture. 

In  North  Carolina,  children  born  out  of  wedlock  can  become  legitimate  only 
upon  petition  of  the  father,  which  must  be  presented  to  the  superior  court  of 
the  county,  where  he  resides,  and  if  it  appear  that  he  is  the  father  of  the  child, 
the  court  may  make  a  decree  to  that  effect  which  shall  be  recorded  by  the  clerk, 
and  such  child  may  then  inherit  from  his  father  only. 

In  Michigan,  children  born  out  of  wedlock  become  legitimate  by  the  subse- 
quent marriage  of  their  parents,  or,  if  they  do  not  marry,  the  father  can  make 
the  child  "legitimate  in  law"  by  so  acknowledging  in  writing,  executed  like  a 
deed  of  land. 

In  Nebraska,  children  born  out  of  wedlock  become  legitimate  if  the  parents 
afterwards  marry  and  have  been  adopted  in  the  family  with  other  children  born 
in  wedlock,  or  shall  have  been  acknowledged  by  the  father  in  writing,  signed 
in  the  presence  of  one  witness. 

In  Louisiana,  children  born  out  of  wedlock,  except  those  born  from  an 
incestuous  or  adulterous  connection,  may  be  legitimated  by  the  subsequent 
marriage  of  their  father  and  mother,  when  legally  acknowledged  before  mar- 
riage, by  an  act  passed  before  a  notary  and  two  witnesses,  or  by  their  contract, 
of  marriage  itself.     They  are  then  known  as  natural  children. 


CHAPTER  LXII. 
SEDUCTION  UNDER  PROMISE  OF  MARRIAGE. 

§  550.  Term  Defined. 

551.  Nature  of  the  Proof . 

552.  Previous  Chastity  of  the  Woman  the  Main  Issue. 

553.  Distinction  between  Seduction  and  Rape. 

554.  Presumption  as  to  Chastity,  how  Rebutted. 

555.  Corroboration  Required  as  to  Promise  and  to  Intercourse. 
55G.  Time  not  Material. 

§  550.  The  Term  Defined.— Webster  defines  seduction  as 
"the  act  or  crime  of  persuading  a  female,  by  flattery  or  deception, 
to  surrender  her  chastity."  Seduction  has  been  defined  as  "the 
use  of  some  influence,  promise,  art  or  other  means  on  the  part  of 
a  man  by  which  he  induces  a  woman  to  surrender  her  chastity  and 
virtue  to  his  embraces."  Anderson,  Law  Diet.  932;  Croghan  v. 
State,  '1-1  Wis.  444;  Patterson  v.  Hoyden,  3  L.  R.  A.  529,  17  Or. 
238,  11  Am.  St.  Rep.  822;  in  this  last  ease  the  court  say  :  "Courts 
have  been  more  inclined  to  follow  AY  el  >sters  definition  than  those 
given  by  the  legal  lexicographers." 

A  woman  cannot  be  said  to  be  "seduced"  who  at  the  time  of 
the  alleged  seduction  was  leading  a  lewd  and  lascivious  life.  Pat- 
terson v.  Hay  den,  3  L.  R.  A.  520,  17  Or.  238. 

§  551.  Nature  of  the  Proof.— The  jury  may  find  the  fact  of 
seduction  upon  the  uncorroborated  testimony  of  the  prosecuting 
witness,  and  corroboration  as  to  the  promise  is  satisfied  by  proof 
of  the  circumstances  usually  attending  an  engagement  of  marriage. 
Mo.  Rev.  Stat.  §  1912;  State  v.  Brassfield,  81  Mo.  152,  51  Am. 
Rep.  234,  and  cases  cited;  Kenyan  v.  People,  26  N.  Y.  203,  84 
Am.  Dec.  177;  Boyce  v.  People,  55  N.  Y.  044. 

Evidence  of  general  reputation  of  the  girl's  want  of  chastity  is 
inadmissible.  Previous  chaste  character,  in  this  statute,  means 
actual  personal  virtue,  not  reputation;  and  can  he  impeached  only 
by  specific  proof  of  lewdness.  Kenyon  v.  People,  L'O  N.  Y.  203- 
207,  5  Park.  Crim.  Rep.  254  285,84  Am.  Dec.  177;  Carpenter 
v.  People,  8  lr,iv\>.  603-607;  Kauffinan  v.  People,  11    Hun,  82. 

Although  the  female  has  previously  fallen   from   virtue,  yet  if 

867 


868  LAW    OF    EVIDENCE    IN    CRIMINAL    CASES. 

she  lias  subsequently  reformed  and  become  chaste,  she  may  be  the 
subject  of  the  offense  declared  in  the  statute.  Carpenter  v.  Peo- 
pl ,  8  Barb.  603. 

The  crime  is  a  most  atrocious  one,  and  one  which  most  naturally 
tends  to  enlist  the  sympathies  of  all  men,  and  of  course  of  jurors, 
in  favor  of  the  victim.  In  such  cases,  while  administering  the 
law  with  perfect  fairness,  courts  must  be  extremely  careful  that 
no  evidence  of  a  tendency  to  excite  or  influence  the  resentment 
of  jurors,  and  which  does  not  tend  to  support  the  evidence  of  the 
prosecutrix,  or  to  connect  the  defendant  with  the  commission  of 
the  crime,  should  be  permitted  to  go  to  the  jury.  People  v. 
A-  wrney,  110  N.  Y.  188. 

It  was  necessary  to  support  the  prosecutrix  by  other  evidence 
than  her  own  as  to  the  promise  of  marriage  and  the  intercourse. 
Kenyan  v.  People,  26  X.  Y.  207,  5  Park.  Crim.  Rep.  254,  81  Am. 
Dec.  177;  People  v.  /Ann:,  8  N.  Y.  Legal  Obs.  139;  Boyce  v.  Peo- 
j>!> ,  55  N.  Y.  015;  People  v.  Haynes,  55  Barb.  450;  State  v.  Craw- 
ford. 34  Iowa,  40;  Com.  v.  Walton,  2  Brewst.  187;  People  v.  Zei- 
<j>  /•.  6  Park.  Crim.  Rep.  356;  Armstrong  v.  People,  70  N".  Y.  38. 

In  trials  for  seduction  under  promise  of  marriage,  the  evidence 
of  the  woman  as  to  such  promise  must  be  corroborated  to  the 
same  extent  required  of  a  principal  witness  in  perjury.  From 
these  statutes  it  is  plain  to  be  seen  that  corroborating  evidence  is 
only  required  as  to  the  promise  of  marriage,  and  in  that  respect 
to  the  extent  of  the  principal  witness  in  perjury.  In  cases  of 
perjury,  it  is  not  required  that  the  corroborating  circumstances 
should  be  equal  to  a  second  witness.  The  additional  evidence,  it 
was  said  in  State  v.  Heed,  57  Mo.  251,  need  not  be  such  as,  stand- 
ing by  itself,  would  justify  a  conviction  in  a  case  where  the  testi- 
mony of  a  single  witness  would  suffice  for  that  purpose;  but  it 
must  at  least  lie  strongly  corroborative  of  the  testimony  of  the 
accusing  witness.  There  must  be  some  evidence,  independent  of 
the  principal  witness;  any  material  circumstance  proved  by  other 
witnesses,  in  confirmation  of  the  witness  who  gave  the  direct  tes- 
timony will  be  sufficient.  Roscoe,  Crim.  Ev.  (6  Am.  ed.)  765. 
"We  can,  then,  apply  these  guides  to  cases  like  the  one  in  hand. 
Evidence  of  circumstances  which  usually  accompany  the  marriage 
engagement  will  satisfy  the  statute  as  to  supporting  evidence, 
v.  Brassfield,  81  Mo.  156,  51  Am.  Rep.  231.  That  case,  it 
is  true,  was  overruled  in   State  v.  Patterson,  88  Mo.    88,  57  Am. 


DEDUCTION    UNDER    PROMISE    OF    MARRIAGE.  SOU 

Rep.  374,  in  one  respect,  but  not  as  to  the  question  now  under 
consideration. 

Under  the  provision  of  an  act  declaring  that  a  conviction  shall 
not  be  had  upon  the  testimony  of  the  female  seduced,  unsupported 
by  other  evidence,  supporting  evidence  is  only  required  as  to  the 
promise  of  marriage,  and  the  carnal  connection. 

As  to  the  promise  of  marriage  the  provision  is  satisfied  by  proof 
of  circumstances  which  usually  attend  an  engagement  of  marriage; 
as  to  the  illicit  intercourse  and  the  immediate  persuasions  and  the 
inducements  which  led  the  female  to  consent,  evidence  of  oppor- 
tunities more  or  less  frequent  and  continued,  and  that  the  rela- 
tions of  the  parties  were  such  as  indicated  that  confidence  in  and 
affection  for  the  accused,  on  the  part  of  the  female  which  ren- 
dered it  possible  that  the  act  may  have  been  done,  are  sufficient. 

The  fact  that  the  prosecutrix  in  her  testimony  limits  the  carnal 
connection  to  a  single  act,  and  specifies  the  time,  does  not  require 
that  the  supporting  evidence  shall  be  confined  to  that  particular 
time;  if  it  covers  a  period  including  the  specified  time  it  is  suffi- 
cient to  meet  the  requirements  of  the  statute,  although  there  is 
no  corroborative  evidence  as  to  the  particular  act  testified  to. 
Armstrong  v.  People,  70  N.  Y.  38. 

On  an  indictment  for  seduction  under  promise  of  marriage,  un- 
der the  laws  of  1848,  chapter  111, — which  constitutes  such  an  act 
a  misdemeanor, — although  an  express  promise  on  the  part  of 
the  defendant  ought  to  be  proved,  it  is  not  necessary  that  there 
should  be  proof  of  an  express  promise  on  the  part  of  the  person 
seduced,  in  order  to  support  defendant's  promise.  A  promise  on 
her  part,  if  necessary  at  all,  may  be  inferred  from  circumstances. 

It  seems,  that  a  promise  on  the  part  of  the  defendant  alone,  is 
enough  to  sustain  a  conviction. 

On  an  indictment  for  seduction  under  promise  of  marriage,  the 
previous  chaste  character  of  the  complainant  is  presumed  until 
evidence  impeaching  it  is  produced.  People  v.  Kane,  14  Abb. 
Pr.  15. 

There  must  be  a  promise  of  marriage,  seduction  of  and  illicit 
connection  with  an  unmarried  female,  who  must  have  been  ot 
"previous  chaste  character,"  and  the  indictment  must  be  found 
within  two  years  after  the  commission  of  the  offense;  and  the 
prosecution  cannot  be  sustained  by  the  testimony  of  the  female 
seduced,  unsupported  by  other  evidence.  Safford  v.  People,  1 
Park.  Grim.  Kep.  474. 


870  LAW    OK    EVIDENCE    IN    CRIMINAL    CASES. 

So,  too,  the  act  of  illicit  connection,  and  the  immediate  persua- 
sions and  inducements,  which  led  to  the  compliance,  need  not  be 
proved  by  the  evidence  of  third  persons  directly  to  the  fact. 
They  are  to  be  inferred  from  the  facts;  that  the  man  had  the 
opportunities,  more  or  less  frequented  and  continued,  of  making 
the  advances  and  the  proposition;  and  that  the  relations  of  the 
parties  were  such,  as  that  there  was  likely  to  be  that  confidence 
on  the  part  of  the  woman  in  the  asseverations  of  devotion  on  the 
part  of  the  man,  and  that  affection  towards  him  personally,  which 
would  overcome  the  reluctance  on  her  part,  so  long  instilled  as  to 
have  become  natural,  to  surrender  her  chastity.  Kenyon  v.  Peo- 
ple, 26  N.  Y.  203,  84  Am.  Dec.  177;  Boyce  v.  People,  55  N.  Y. 
644. 

Circumstances  of  this  kind  vary  in  weight  in  different  cases, 
and  it  is  for  the  jury  to  determine  their  strength.  But,  when 
proof  is  made  of  the  existence  of  them,  in  some  degree,  it  cannot 
be  said  that  there  is  no  supporting  evidence.  A  court  cannot  then 
properly  direct  a  verdict,  or  discharge  the  defendant  in  the  indict- 
ment, on  the  ground  that  no  case  is  made  for  the  consideration  of 
the  jury.     Armstrong  v.  People,  70  N.  Y.  44. 

I  think  the  true  rule  is,  in  cases  like  this,  when  there  is  some 
evidence  given  by  other  witnesses,  which  supports  the  testimony 
of  the  prosecutrix,  on  the  material  questions  in  the  case,  the  jury 
must  determine  whether  she  is  sufficiently  corroborated  to  war- 
rant a  verdict  of  guilty.  And  this  conclusion  is  in  harmony  with 
the  decision  in  Kenyon  v.  People,  26  N.  Y.  203,  84  Am.  Dec.  177; 
Crandall  v.  People,  2  Lans.  309. 

§  552.  Previous  Chastity  of  the  Woman  the  Main  Issue.— 
An  important  requisite  to  the  offense  charged  is,  that  the  female 
against  whom  it  is  alleged  to  have  been  committed,  shall  have  been 
of  a  previously  chaste  character.  The  requisition  of  the  statute, 
it  is  held,  relates  not  to  the  reputation  of  the  prosecutrix  but  to 
her  actual  condition,  and  requires  absolute  personal  chastity. 
Kenyon  v.  People,  26  N.  Y.  203,  84  Am.  Dec.  177.  It  is,  there- 
fore, impossible  that  the  offense  be  twice  committed  against  the 
same  female.  If  she  has  once  consented  to  and  willingly  permitted 
sexual  intercourse  with  herself,  she  no  longer  possesses  that  chaste 
character  required  by  the  statute  as  an  essential  ingredient  of  the 
offense.  Accordingly  where  a  seduction  under  a  promise  of  mar- 
riage had  taken  place,  four  or  five  years  before  the  indictment, 


SEDUCTION    UNDER    PROMISE    OF    MARRIAGE.  871 

and  the  illicit  intercourse  and  the  promise  of  marriage  had  con- 
tinued down  to  within  less  than  two  years  before  indictment 
found,  it  was  held  that  the  offense  could  not  have  been  committed 
within  the  two  years  limited  by  the  statute  before  indictment 
found.  Safford  v.  People,  1  Park.  Crim.  Eep.  474;  Cook  v.  Peo- 
ple, 2  Thomp.  &  C.  406. 

The  chastity  of  the  woman  is  directly  in  issue  in  these  cases 
{State  v.  Patterson,  88  Mo.  88,  57  Am.  Rep.  374)  and  it  is  not 
the  proper  province  of  the  court  to  determine  the  weight  of  the 
evidence. 

To  overcome  the  presumption  of  previous  chastity,  defendant 
must  show  unchastity  by  a  preponderance  of  evidence.  State  v. 
Hemm,  82  Iowa,  609. 

Though  the  law  presumes  that  every  woman  is  chaste  and  of 
good  repute,  it  also  presumes  every  one  innocent  of  crime  till 
proven  guilty,  and  in  prosecutions  for  seduction  the  burden  is  on 
the  state  to  allege  and  prove  in  the  first  instance  that  the  woman 
is  of  good  repute.     State  v.  McCashey,  1"4  Mo.  ti44. 

Under  indictment  for  seduction,  where  the  evidence  showed 
that  the  prosecutrix,  at  the  time  she  yielded  to  the  defendant,  was 
a  child  a  few  days  past  the  age  of  fourteen,  and  of  weak  mental 
development;  that  before  the  first  act  of  intercourse  defendant, 
who  was  a  man  of  thirty-five,  not  only  promised  to  marry  her, 
but  stated  to  her  that  many  other  young  girls  of  the  neighborhood 
were  in  the  habit  of  engaging  in  sexual  intercourse — it  was  error 
for  the  court  to  refuse  to  permit  the  fullest  investigation  into 
their  subsequent  relations  with  a  view  of  showing  whether  defend- 
ant entered  into  such  contract  of  marriage  in  good  faith  at  the 
time,  or  merely  to  gratify  his  lust.  State  v.  Hockey,  82  Iowa, 
393. 

The  court  refused  to  charge  that  "the  defendant  has  offered 
evidence  ...  of  specific  language  and  conduct  on  the  part 
of  the  prosecutrix  which,  he  claims,  shows  her  to  be  of  unchaste 
character  at  the  time  of  the  alleged  seduction,  and  yon  are 
instructed  that  it  was  the  right  of  the  state  to  introduce  evidence 

.  .  rebutting"  this  "testimony."  Held,  that  as  the  instruction 
fixed  no  consequences  to  the  neglect  of  the  state  to  introduce  such 
evidence,  it  was  properly  refused  as  misleading.  State  v.  Hemm, 
82  Iowa,  609. 

Under  an  indictment  for  seduction,  it  is  error  to  instruct  that 


872  LAW    OF    EVIDENCE    IN    CKIMINAL    CASES. 

the  burden  of  showing  defendant's  subsequent  refusal  to  marry 
the  prosecutrix  is  upon  the  state,  since  an  offer  of  marriage  after 
seduction  is  not  a  bar  to  the  prosecution,  but  only  an  actual  mar- 
riage.    State  v.  Macfcey,  82  Iowa,  393. 

In  prosecutions  for  seduction,  it  is  usually  required  by  statute 
that  the  prosecutrix  should  be  corroborated  at  least  as  to  promise 
of  marriage.  Com.  v.  Walton,  2  Brewst.  487;  State  v.  Painter, 
50  Iowa,  317;  State  v.  Curran,  51  Iowa,  112. 

The  prosecutrix  also  testified  that  the  accused,  to  induce  her  to 
consent  to  his  proposal,  staged  in  substance  that  he  never  would 
marry  a  girl  unless  he  was  satisfied  that  she  was  a  virgin,  which 
he  could  ascertain  only  by  her  assenting  to  his  proposition.  But 
upon  hei  expressing  apprehension  that  he  would  leave  her  if  she 
yielded  to  him,  he  assured  her,  in  the  strongest  terms,  that  he 
would  marry  her.  The  prisoner's  counsel  asked  the  court  to 
charge  in  substance  that,  if  the  promise  to  marry  was  not  an 
existing  one,  but  an  inchoate  proposition  depending  upon  the 
result  of  illicit  intercourse  as  furnishing  evidence  of  virtue  to 
complete  the  mutuality  of  the  contract,  the  case  was  not  within 
the  statute.  The  court  declined,  so  to  charge.  Held  (Church,  Oh. 
«/.,  and  Rapallo,  </.,  dissenting)  no  error,  as  there  was  no  just 
foundation  in  the  evidence  to  claim  that  the  promise  was  to  marry 
only  in  case  the  accused  should  be  satisfied  that  the  prosecutrix 
was  a  virgin;  that  it  was  to  the  promise  and  not  to  any  test  of 
virginity  that  she  gave  her  consent. 

The  time  of  the  alleged  seduction  was  February  5, 1871,  followed 
by  subsequent  intercourse  down  to  August.  It  was  proved,  with- 
out objection,  that  the  prosecutrix  was  delivered  of  a  child  Feb- 
ruary 10,  1872.  The  prosecution  disclaimed  any  reliance  upon 
this  fact  as  corroborating  the  evidence  of  the  prosecutrix;  the 
court  held  the  evidence  immaterial. 

The  prisoner's  counsel  offered  evidence  that  between  the  5th 
of  February  and  May  1st,  1S71,  the  prosecutrix  had  carnal 
connection  with  another  man,  which  was  excluded.  Held  (Church, 
Ch.  «/.,  and  Rapallo,  J.,  dissenting)  no  error;  that  pregnancy  was 
not  essential  to  the  consummation  of  the  offense  charged;  that  the 
evidence  rejected  could  only  have  been  material  to  obviate  the 
effect  of  that  fact  as  corroborative  evidence,  and,  as  that  was 
expressly  disavowed,  the  rejection  was  proper.  Also,  that  the 
rejection  could  be  sustained  upon  the  ground   that  the  offer  was 


SEDUCTION    UNDER    PROMISE    OF   MARRIAGE.  873 

not  limited  to  show  any  illicit  intercourse  at  a  time  when  the 
child  could  have  been  begotten,  and  was  in  effect  simply  to  show 
that  after  the  alleged  seduction  she  had  been  guilty  of  fornication 
with  another  person,  which  was  clearly  incompetent.  Boyce  v. 
People,  55  K  Y.  644. 

It  is  not  sufficient  to  establish  the  sexual  intercourse,  but  the 
plaintiff  must  show  that  defendant  accomplished  his  purpose  by 
some  promise  or  artifice,  or  that  she  was  induced  to  yield  to  his 
embrace  by  flattery  or  deception.  If  without  being  deceived,  and 
without  any  false  pretense,  deceit  or  artifice,  she  voluntarily  sub- 
mitted to  the  connection,  the  law  affords  her  no  remedy.  Smith 
v.  Mllburn,  17  Iowa,  30. 

The  prosecutrix  must  be  supported  by  other  evidence  as  to  all  of 
the  elements  which  are  necessary  to  contribute  to  the  crime,  bef<  >re 
the  jury  can  convict.  If  the  corroborative  evidence  supports  one 
or  more,  and  yet  fails  to  support  all  the  necessary  elements,  such 
support  is  not  given  as  the  law  requires  to  allow  or  sustain  a  convic- 
tion. See  N.  Y.  Penal  Code,  §  286;  People  v.  Plath,  100  K  Y. 
590,  53  Am.  Eep.  236;  Armstrong  v.  People,  70  N.  Y.  38.  In 
criminal  trials  where  the  fact  proved  or  corroborated  is  consistent 
with  innocence,  it  cannot  be  accepted  as  any  proof  of  guilt.  Peo- 
ple v.  Elliott,  106  N.  Y.  288;  State  v.  Warren,  34  Iowa,  453; 
People  v.  Josselyn,  39  Cal.  398 ;  People  v.  Williams,  29  Hun, 
520. 

The  testimony  of  a  female  seduced  is  sufficiently  supported  by 
proof  of  opportunity  and  confiding  freedom  of  relations.  Ann- 
strong  v.  People,  70  N.  Y.  38.  In  all  cases  the  sufficiency  of  the 
supporting  evidence  is  for  the  jury,  and  it  is  reversible  error  to 
withdraw  this  question  of  sufficiency  from  their  consideration. 
Crandall  v.  People,  2  Lans.  309;  Armstrong  v.  People,  70 
]ST.  Y.  44.  Circumstantial  evidence  was  always  sufficient  in 
supporting  an  accomplice,  corroboration  being  required  only  as  to 
the  person  of  the  accused;  that  is.  testimony  showing  that  the 
defendant  was  the  party  who  committed  the  crime.  "Whart.  Crirn. 
Ev.  §  442.  In  the  case  of  an  accomplice,  whether  evidence  is 
sufficient  is  for  the  determination  of  the  jury;  the  law  is  complied 
with  if  there  is  some  other  evidence  fairly  tending  to  connect  the 
defendant  with  the  commission  of  the  crime,  so  that  his  convic- 
tion will  not  rest  entirely  upon  the  evidence  of  the  accomplice. 
People  v.  Everhardt,  104  N.  Y.  594;    People  v.  Elliott,  106  N. 


874  LAW    OF    EVIDENCE    IN    CRIMINAL    CASES. 

Y.  288;  People  v.  Jaehne,  103  N.  Y.  182;  Crandall  v.  People, 
supra;  People  v.  Plath,  100  K  Y.  594,  53  Am.  Rep.  236.  No 
corroboration  is  required  as  to  previous  chastity  or  as  to  the  fact 
of  being  married.  Armstrong  v.  People,  supra;  Kenyon  v. 
People,  26  N".  Y.  203,  81  Am.  Dec.  177;  Boyce  v.  Peop&,  55  N. 
Y.  641;  Jenkins  v.  Putnam,  106  N.  Y.  272.  Corroboration  is 
required  as  to  the  promise  and  intercourse  only,  and  not  with 
respect  to  chastity  or  being  unmarried.  Kenyon  v.  People  and 
Crandall  v.  People,  supra.  Supporting  evidence  was  required 
as  to  two  matters  only,  to  wit,  the  promise  of  marriage  and  carnal 
connection.  Kenyon,  v.  People  and  Boyee  v.  People,  supra.  In 
prosecutions  for  adultery  or  for  illicit  intercourse  of  any  class, 
evidence  is  admissible  of  sexual  acts  between  the  same  parties 
prior  to  or  when  indicating  continuance  of  illicit  relations,  even 
subsequent  to  the  act  specifically  under  trial.  Thayer  v.  Thayer, 
101  Mass.  Ill,  100  Am.  Dec.  110;  State  v.  Bridgman,  49  Vt. 
202,  24  Am.  Rep.  121;  Crandall  v.  People,  supra.  The  statute 
requires  only  previous  chastity.  N.  Y.  Penal  Code,  §  284;  A  r in- 
strong  v.  People,  supra.  The  supporting  evidence  need  not  be 
such  only  as  the  character  of  the  matters  admits  of  being  fur- 
nished. It  was  for  the  jury  to  say  whether  the  supporting  evi- 
dence was  sufficient.  People  v.  Armstrong,  Crandall  v.  People, 
People  v.  Elliott  and  People  v.  Everhardt,  supra. 

§  553.  Distinction  between  Seduction  and  Rape. — The 
crime  of  seduction  is  not  to  be  confounded  with  the  higher  and 
more  atrocious  crime  of  rape.  The  latter  crime  is  defined  to  be 
the  carnal  knowledge  of  a  woman  by  a  man  forcibly  and  unlaw- 
fully, against  her  will.  2  Bouvier,  Law  Diet,  title  Rape.  The 
element  of  force  forms  a  material  ingredient  of  the  offense,  by 
which  a  resistance  of  the  woman  violated  is  overcome,  or  her  con- 
sent induced  by  threats  of  personal  violence,  duress  or  fraud. 
For,  unless  the  consent  of  the  woman  to  the  unlawful  intercourse  is 
freely  and  voluntarily  given,  the  offense  of  rape  is  complete. 
But  the  word  "seduction,''  when  applied  to  the  conduct  of  a  man 
towards  a  female,  is  generally  understood  to  mean  the  use  of  some 
influence,  promise,  arts,  or  means  on  his  part,  by  which  he  induces 
the  woman  to  surrender  her  chastity  and  virtue  to  his  embraces. 
But  we  do  not  suppose  that  it  must  appear  that  any  distinct 
promise  was  made  to  the  female,  or  any  subtle  art  or  device  em- 
ployed.    It  is  sufficient  that  the  means  used  to  accomplish  the 


SEDUCTION    UNDER    PROMISE    OF    MARRIAGE.  875 

seduction,  induced  the  female  to  consent  to  the  sexual  intercourse. 
Perhaps  the  motive  of  fear  on  the  mind  of  the  female  is  not  to  he 
•excluded — not  the  fear  of  personal  violence  and  injury  unless  she 
consents  to  the  connection,  but  the  fear  that  the  man  may  in  some 
way  injure  her  reputation  or  standing  in  society,  unless  she  yields  to 
his  importunities.  But  the  woman  must  be  tempted,  allured,  and 
led  astray  from  the  path  of  virtue,  though  the  violence  of  some 
means  or  persuasion  employed  by  the  man,  until  she  freely  con- 
sents to  the  sexual  connection.  But  if  the  circumstances  show 
that  this  consent  was  obtained  by  the  use  of  force,  and  the 
woman's  will  was  overcome  by  fear  of  personal  injury,  then  the 
crime  becomes  one  of  a  higher  grade.  Croghan  v.  State,  "2'2  Wis. 
444. 

Evidence  is  admissible  that  the  defendant  boasted  to  his  friends 
that  he  had  had  illicit  intercourse  with  the  prosecutrix,  as  tending 
to  show  not  alone  the  illicit  connection,  but  also,  in  view  of  the 
-circumstances  under  which  the  admissions  were  made,  the  decep- 
tive practices  by  which  it  was  brought  about.  State  v.  Hill,  91 
JVIo.  4i>:;. 

Evidence  which  shows  that  the  woman  lived  with  her  father 
.and  bore  his  name,  that  she  had  received  the  addresses  of  the 
•defendant  for  more  than  three  years,  and  that  a  marriage  agree- 
ment existed  between  them  when  the  crime  was  committed,  is  suf- 
ficient to  warrant  the  jury  to  find  that  the  woman  is  unmarried. 
■State  v.  Heatherton,  60  Iowa,  175. 

§  554.  Presumption  as  to  Chastity,  how  Rebutted. — 
Under  a  statute  making  it  indictable  to  seduce  a  female  of  good  re- 
pute for  chastity,  under  promise  of  marriage,  the  state  must  prove 
her  good  repute  affirmatively;  it  will  not  be  presumed.  In  a  recent 
case  the  court  below  had  charged  the  jury  that  the  law  presumes 
every  woman  to  be  of  good  repute  for  chastity;  that  this  presump- 
tion must  be  destroyed  by  proof  of  bad  repute,  in  the  absence  of 
which  the  defendant  may  be  convicted.  This,  as  seen  by  the  syl- 
labus quoted,  was  held  to  be  error.  The  court,  enumerating  the 
elements  of  the  offense  described  by  the  statute  of  New  Jersey, 
that,  1st,  the  defendant  must  be  a  single  man  over  the  age  of 
eighteen;  2d,  the  defendant  must  be  a  single  woman;  3d,  she  must 

be  under  the  age  of  twenty-one;  4th,  she   must   1 f  good  repute 

for  chastity;  5th,  the  sexual  intercourse  tnusl  have  been  had  under 
.a  promise  of  marriage;  6th,  she  must  thereby  become  pregnant; 


876  LAW    OF    EVIDENCE    IN    CRIMINAL    CASES. 

and  7th,  the  evidence  of  the  female  must  be  corroborated  to  the 
extent  required  in  case  of  indictment  for  perjury,  says :  "These 
are  essential  elements  of  the  offense;  the  presence  of  each  and  all 
of  them  is  necessary  to  conviction,  and  the  absence  of  any  of  them 
is  fatal  to  the  case  of  the  state.  The  burden  rests  upon  the  state 
to  prove  the  guilt  of  the  accused  beyond  a  reasonable  doubt,  and 

therefore  each  of  these  facts  must  be  established 

Good  repute  for  chastity  is  a  quality  which  may  or  may  not  exist 
in  the  prosecutrix;  women  are  not  all  chaste;  the  statute  itself  rec- 
ognizes two  classes,  those  of  good  repute  and  those  not  of  good 
repute.  With  the  former  class  only  can  the  statutory  crime  pos- 
sibly be  committed.     .     .     . 

"  A  woman  who  comes  into  court  with  a  bastard  child  in  her 
arms,  is  not  a  representative  of  her  sex;  happily  she  represents  a 
very  insignificant  portion  of  it.  The  fact  that  she  has  sacrificed 
that  virtue  which  was  her  glittering  crown,  casts  such  a  shadow 
upon  her,  that  ip  the  most  charitable  view  of  the  case,  it  should 
be  left  without  presumption  either  way,  to  be  determined  by  com- 
petent evidence  what  her  prior  repute  has  been.  Her  immoral 
conduct,  unless  mitigating  circumstances  are  shown,  classes  her 
with  the  vicious  and  disreputable,  and,  as  to  her,  negatives  the 
presumption  of  purity,  so  universally  accorded  to  her  sex.  The 
question  is,  not  whether  the  vast  majority  of  females  are  of  good 
repute,  but  whether  in  this  case  it  shall  be  presumed  as  a  fact. 
against  the  defendant  that  the  woman  with  whom  the  crime  is 
alleged  to  have  been  committed,  and  who  carries  with  her  the 
evidence  of  her  shame,  is  of  good  repute.  The  rule,  if  well 
founded,  must  be  of  universal  application,  and  involves  the  broad 
proposition  that  of  the  entire  class  of  women  who  bear  illegitimate 
children,  it  must  be  presumed  that  every  one  who  prefers  a  charge 
of  this  kind  is  of  good  repute  for  chastity.  It  will  be  more  rea- 
sonable to  reverse  the  proposition.     .     .     . 

"  She  has  avowedly  participated  with  the  defendant  in  a  viola- 
tion of  the  criminal  law,  and  she  must  be  regarded  as  in  pari  de- 
licto until  those  material  facts  (of  which  her  good  repute  is  one) 
are  shown  to  exist  which  aggravate  the  character  of  the  delictum 
and  make  the  defendant  alone  amenable  to  the  higher  statutory 
crime.  To  assert  that  a  woman  establishes  a  claim  before  the  law 
to  the  presumption  of  good  repute  for  chastity,  when  she  admits 
her  dereliction,  seems  contrary  to  reason  and  propriety,  and  places- 


SEDUCTION    UNDER    PROMISE    OF    MARRIAGE.  877 

her  upon  the  same  plane  with  those  whose  lives  have  been  blame- 
less." Zabriskie  v.  State,  43  N.  J.  L.  641,  39  Am.  Rep.  610.  See 
3  Grim.  L.  Mag.  333. 

§  555.  Corroboration  Required  as  to  Promise  and  Inter- 
course.— Corroboration  is  required  as  to  the  promise  and  in- 
tercourse only,  and  not  with  respect  to  chastity  or  being  unmar- 
ried. Kenyon  v.  People,  26  X.  Y.  203,  84  Am.  Dec.  177;  Cran- 
dall v.  People,  2  Lans.  309.  Circumstantial  evidence  was  always 
sufficient  in  supporting  an  accomplice,  corroboration  being  re- 
quired only  as  to  the  person  of  the  accused;  that  is,  testimony 
showing  that  the  defendant  was  the  party  who  committed  the 
crime.  Wliart.  Crim.  Ev.  §  412.  In  the  case  of  an  accomplice; 
whether  evidence  is  sufficient  is  for  the  determination  of  the  jury, 
the  law  is  complied  with  if  there  is  some  other  evidence  fairly 
tending  to  connect  the  defendant  with  the  commission  of  the 
crime,  so  that  his  conviction  will  not  rest  entirely  upon  the  evi- 
dence of  his  accomplice.  People  v.  Everhardt,  104  X.  Y.  294; 
People  v.  Elliott,  106  K  Y.  292;  People  v.  Jaehne,  103  N.  Y. 
182;  Crandall  v.  People,  supra;  People  v.  Plath,  100  X.  Y.  594, 
53  Am.  Rep.  236.  The  supporting  evidence  need  be  such  only 
as  the  character  of  the  matters  admits  of  being  furnished.  It  was 
for  the  jury  to  say  whether  the  supporting  evidence  was  sufficient. 
Armstrong  v.  People,  70  X.  Y.  14:  Crandall  v.  People,  People 
v.  Elliott  and  People  v.  Ewrhardt,  supra.  In  prosecutions  for 
adultery  or  for  illicit  intercourse  of  any  class,  evidence  is  admissi- 
ble of  sexual  acts  between  the  same  parties  prior  to  or  when  indi- 
cating continuance  of  illicit  relation-,  even  subsequent  to  the  act 
specifically  under  trial.  "Whart.  Crim.  Ev.  (8th  ed.)  §  35;  Thayer 
v.  Thayer,  101  Mass.  Ill,  100  Am.  Dec,  110;  Statev.  JSridgman, 
49  Vt.  202,  24  Am.  Rep.  124;  Crandall  v.  People,  supra.  The 
statute  requires  only  previous  chastity.  X.  Y.  Penal  Code,  §  284; 
Armstrong  v.  People,  supra.  No  corroboration  is  required  as  to 
previous  chastity  or  as  to  the  fact  of  being  unmarried.  Arm- 
strong v.  People  and  Kenyon  v.  People,  .supra,;  Boyee  v.  People, 
55  N.  Y.  till;  Jenkins  v.  Putnam,  106  N".  Y.  •ArJ;  People  v. 
K<  wney,  110  X.  V.  190. 

Under  the  .Now  York  act  to  punish  seduction  as  a  crime 
(Laws  of  1  348,  chap.  1 1 1)  it  is  sufficient  that  the  defendant  effected 
his  object  by  a  conditional  promise  that,  if  the  girl  would  permit 
his  illicit  connection,  he  would  marry  her. 


878  LAW    OF    EVIDENCE    IN    CRIMINAL,   CASES. 

The  submitting  to  his  embraces  upon  tliis  proposition  is,  it 
seems,  a  promise  to  marry  on  her  part. 

Evidence  of  general  reputation  of  the  girl's  want  of  chastity  is 
inadmissible.  Previous  chaste  character,  in  this  statute,  means 
actual  personal  virtue — not  reputation;  and  can  be  impeached  only 
by  specific  proof  of  lewdness. 

The  corroboration  of  the  seduced  female,  required  by  the  stat- 
ute, relates  to  the  promise  and  the  intercourse;  it  is  not  necessary 
in  respect  to  her  chastity  or  to  her  being  unmarried. 

The  evidence  of  the  seduced  female  is  admissible  that  the 
promise  of  marriage  was  the  inducement  to  the  illicit  intercourse. 

It  is  unnecessary  that  the  promise  should  be  a  valid  one,  or 
that  the  defendant  be  of  full  age.  It  is  sufficient  that  he  has 
arrived  at  the  age  of  puberty.  Kenyan  v.  People,  26  K.  Y.  203,. 
84  Am.  Dec.  177. 

On  a  prosecution  for  seduction  of  a  girl  with  whom  defendant 
had  previously  had  illicit  intercourse,  but  who  had  again  become 
of  chaste  character,  evidence  of  other  witnesses  that  defendant 
resumed  his  visits  as  a  suitor,  and  continued  them  for  several 
months,  the  same  as  persons  contemplating  marriage  usually  do, 
sufficiently  corroborates  the  testimony  of  the  prosecutrix  to  the 
principal  facts.     State  v.  Gnagy  (Iowa)  Dec.  18,  1891. 

The  defendant  was  convicted  of  seduction,  under  section  -1015 
of  the  Alabama  Code,  1886,  which  declares:  "No  indictment  or 
conviction  shall  be  had  under  this  section,  on  the  uncorroborated 
testimony  of  the  woman  upon  whom  the  seduction  is  charged." 
This  clause  of  the  statute  was  fully  considered  in  Cunningham  v. 
State,  73  Ala.  51.  It  wTas  then  construed  as  not  requiring  that 
other  witnesses  shall  testify  to  every  fact  testified  to  by  the  wom- 
an; but  that  its  requirements  are  met,  when  the  corroboration  is 
of  some  matter  which  is  an  element  of  the  offense,  and  its  effect 
is  to  satisfy  the  jury  that  the  corroborated  witness  has  testified 
truly.  The  true  rule  is  stated  as  follows :  "That  the  corrobora- 
tion shall  be  such  as  to  convince  the  jury,  beyond  a  reasonable 
doubt,  that  the  witness  swore  truly,  but,  to  produce  this  convic- 
tion it  must  be  in  a  matter  material  to  the  issue,  and  must  tend 
to  connect  the  defendant  with  that  material  matter,  and  the  mat- 
ter itself  must  not  be  in  its  nature  formal,  indifferent,  or  harmless." 
This  instruction  was  re-affirmed  in  Wilson  v.  State,  73  Ala.  527, 
at  a  subsequent  term  of  the  court.     The  corroborating  evidence 


SEDUCTION    UNDER    PROMISE    OF   MARRIAGE.  879* 

consisted  of  the  defendant's  frequent  visits  to  the  female  for 
whose  seduction  he  was  indicted,  his  escorting  her  to  church, 
parties,  and  other  social  gatherings,  and  his  admission  of  an  en- 
gagement and  intention  to  marry  her,  made  about  the  time  of  the 
alleged  seduction.  A  promise  of  marriage  is  one  of  the  alterna- 
tive elements  of  the  offense  denounced  by  the  statute.  The  cor- 
roboration was  as  to  this  act,  with  which  the  evidence  connected 
defendant.  His  admissions  were  properly  received  in  evidence. 
The  phraseology  of  the  charge  of  the  court  on  this  subject  may 
be  objectionable,  as  importing  to  the  jury  that  the  corroborating 
testimony  was  sufficient.  Evidence  may  be  sufficient  to  meet  the 
statutory  requirement  as  to  corroboration,  and  yet  not  sufficient 
to  satisfy  the  jury  that  the  woman  swore  truly. 

§  556.  Time  not  Material. — The  exact  time  is  never  material. 
Although  the  prosecutrix  may  be  quite  positive  in  this  respect, 
she  is  not  infallible,  and  may  be  mistaken;  and  it  is  not  material 
that  the  seduction  occurred  on  the  particular  day  named  by  the 
prosecutrix.  It  is  therefore,  not  essential  that  she  should  be  cor- 
roborated as  to  the  exact  day.  In  this  connection  we  deem  it 
proper  to  say  that  the  instructions  of  the  court,  that  if  the  seduc- 
tion was  accomplished  about  or  near  the  time  named  in  the  indict- 
ment, and  fixed  by  the  prosecutrix  in  her  evidence,  it  was  suffi- 
cient, are  correct.  State  v.  Bell,  49  Iowa,  440;  State  v.  McClin^ 
tic,  73  Iowa,  663. 

As  to  further  evidence  necessary  to  sustain  an  action  for  seduc- 
tion, see  Wood  v.  State,  48  Ga.  192,  15  Am.  Rep.  664;  Wilson  v. 
State,  58  Ga.  328.  On  evidence  to  impeach  the  chastity  of  the 
female,  see  White  v.  Murtland,  71  111.  250,  22  Am.  Rep.  100; 
Love  v.  Masoner,  6  Baxt.  24,  32  Am.  Rep.  522.  Where  the  offense 
charged  is  the  last  of  several  similar  acts,  the  jury  may  consider 
them  as  the  elements  of  one  wrong.  Haymond  v.  Saucer,  M 
Ind.  3. 

It  is  not  necessary  that  the  promise  should  be  a  valid  and  bind- 
ing one  between  the  parties.  The  offense  consists  in  seducing 
and  having  illicit  connection  with  an  unmarried  female  under 
promise  of  marriage.  It  is  enough  that  a  promise  is  made  which 
is  a  consideration  for  or  inducement  to  the  intercourse.  Kenyan 
v.  People,  26  K  Y.  203,  84  Am.  Dec.  177.  This  case  is  approved 
in  Boyce  v.  People,  55  N.  Y.  644.  In  that  case  the  promise  was 
one  conditioned  upon  a  consent  to  illicit  connection.     That  con- 


880  LAW    OF    EVIDENCE    IN    CRIMINAL    CASES. 

sent,  based  upon  such  a  promise  was  within  the  law.  It  was  held, 
in  Armstrong  v.  People,  70  N.  Y.  38,  that  the  question  was  not 
presented  by  the  case. 

Any  line  of  conduct  on  the  part  of  a  parent,  from  which  there 
may  be  justly  inferred  an  assent  to,  or  connivance  at  the  illicit 
intercourse,  will  deprive  him  of  all  right  to  maintain  an  action  for 
the  seduction  of  his  daughter.  Such  conduct,  even  if  not  amount- 
ing to  an  absolute  assent,  but  showing  want  of  due  care  on  his 
part,  may  be  taken  into  account  in  measuring  the  damages.  It  is 
no  excuse  for  the  parent  that  such  conduct  was  in  conformity 
with  the  customs  of  the  community  in  which  he  lived.  Graham 
v.  Smith,  1  Edm.  Sel.  Cas.  267. 

The  chastity  of  the  woman,  at  the  time  of  the  criminal  connec- 
tion, is  an  essential  ingredient  of  the  offense.  The  statute  pr<  \- 
vides,  "No  conviction  shall  be  had,  if  on  the  trial  it  is  proved  that 
such  woman  was,  at  the  time  of  the  alleged  offense,  unchaste." 
Munkers  v.  State,  S7  Ala.  94. 

In  Cook  v.  People.  2  Thomp.  &  C.  404,  the  prosecutrix  was 
asked,  "and  would  you  have  consented  to  it  (the  connection)  in 
the  absence  of  a  promise  ?"  Held,  inadmissible  as  calling  for  a 
merely  speculative  answer. 

But  the  female  may  testify  to  the  fact  that  she  consented  to  the 
intercourse  because  of  the  promise.  State  v.  BrinJchaus,  34  Minn. 
285,  7  Crim.  L.  Mag.  343. 

Evidence  that  defendant,  subsequent  to  the  seduction,  had 
refused  to  marry  the  prosecutrix  is  inadmissible.  Cook  v.  People, 
2  Thomp.  &  C.  404.  See  Callahan  v.  State,  63  Ind.  198,  30  Am. 
Rep.  211;  People  v.  DeFore,  64  Mich.  693,  8  Am.  St.  Rep.  868; 
State  v.  Prizer,  49  Iowa,  531,  31  Am.  Rep.  155;  Zabriskie  v. 
State,  43  K  J.  L.  640,  39  Am.  Rep.  610;  Oliver  v.  Com.  101  Pa. 
215,  47  Am.  Rep.  704;  People  v.  Roderigas,  49  Gal.  9;  Polk  v. 
State,  40  Ark.  482,  48  Am.  Rep.  17;  People  v.  Squires,  49  Mich. 
487;  Wood  v.  State,  48  Ga.  192,  15  Am.  Rep.  664;  State  v.  Rig- 
don,  32  Iowa,  262. 


CHAPTER  LXIII. 

CRIMINAL  LIBEL. 

§  557.  The  Term  "Libel"  Defined. 

558.  What  Constitutes  Criminal  Libel. 

559.  The  Term  " Publication"  Defined. 

560.  Publication,  liow  Proved. 

561.  What  the  Indictment  mud  Show. 

562.  Outline  of  Plaintiff's  Proofs. 

563.  A  Restriction  upon  Plaintiff's  Evidence  Noted. 

564.  Evidence  in  Aggravation  of  Damages. 

565.  Malice  as  an' Element — Presumptions  as  to. 

566.  Privileged  Communications. 

567.  Rules  as  to  Justification. 

568.  Repetition  of  a  Slander. 

569.  Malice,  hoto  Proved. 

570.  Evidence  of  Intent  Material. 

571.  Accused  wan  Sircar  to  his  latent. 

572.  Fair  Criticism  Allowed. 

573.  Rules  as  to  Editors  and  Reporters. 

574.  Miscellaneous  Authorities  on  the  Subject. 

§  557.  The  Term  Defined. — There  are  many  definitions  of 
libel.  The  one  by  Alexander  Hamilton  in  his  argument  in  Peo- 
ple v.  Croswell,  3  Johns.  Cas.  203,  viz:  "  A  censorious  or  ridicul- 
ing writing,  picture  or  sign,  made  with  malicious  intent  towards 
government,  magistrates  or  individuals,"  has  been  often  referred 
to  with  approval;  but,  unless  the  word  "censorious"  is  given  a  much 
broader  signification  than  strictly  belongs  to  it,  the  definition 
would  not  seem  to  comprehend  all  cases  of  libelous  words.  The 
word  "  libel,"  as  expounded  in  the  cases,  is  not  limited  to  written 
or  printed  words  which  defame  a  man,  in  the  ordinary  sense,  or 
which  impute  blame  or  moral  turpitude,  or  which  criticise  or  cen- 
sure him.  In  the  case  before  referred  to,  words  affecting  a  man 
injuriously  in  his  trade  or  occupation,  may  be  libelous,  although 
they  convey  no  imputation  upon  his  character.  "  "Words,"  says 
Starkie,  "are  libelous  if  they  affeel  a  person  in  his  profession, 
trade  or  business,  by  imputing  to  him  any  kind  of  fraud,  dis- 
honesty, misconduct,  incapacity,  unfitness  or  want  of  any  neces- 
56  881 


882  LAW    OF    EVIDENCE    IN    CKIMINAL    CASES. 

sary  qualification  in  the  exercise  thereof."  Starkie,  Slander  & 
Libel,  §  188. 

Libel  is  the  willful  and  malicious  publication,  in  a  permanent 
and  visible  form,  of  some  matter  tending  to  injure  the  reputation 
of  another.  Chaddoek  v.  Briggs,  13  Mass.  248,  7  Am.  Dec.  L37. 
See  4  Bl.  Com.  150;  2  Whart.  Am.  Crim.  L.  (8th  ed.)  §  1504;  1 
Hawk.  P.  C.  chap.  73,  §  1.  Of  deceased  persons  {Com.  v.  Clap, 
4  Mass.  163,  3  Am.  Dec.  212;  Anonymous,  5  Coke,  125a)  if 
done  to  bring  the  family  into  contempt,  stir  up  hatred,  or  excite 
to  a  breach  of  the  peace.  Com.  v.  Taylor,  5  Binn.  281;  Rex  v. 
Topham,  4  T.  K.  127;  2  Bishop,  Crim.  L.  (6th  ed.)  §  905.  It  is 
a  crime  at  common  law  (see  Com.  v.  Chapman,  13  Met.  68;  Com. 
Holmes,  17  Mass.  336;  State  v.  Burnham,  9  N.  H.  34,  31  Am. 
Dec.  217;  State  v.  Avery,  7  Conn.  268,  18  Am.  Dec.  105)  an  in- 
dictable offense  {Com.  v.  Chapman,  supra)  it  is  not  a  private 
action,  subject  to  compromise  {Beg.  v.  The  World,  13  Cox,  C.  C. 
305)  and  neither  retraction  nor  apology  is  a  defense,  going  only  in 
mitigation  of  damages.  Com.  v.  Morgan,  107  Mass.  199.  When- 
ever an  action  lies  for  libel  without  laying  special  damages,  indict- 
ment lies.  Stanton  v.  Andrews,  5  U.  C.  Q.  B.  229;  Desty,  Am. 
Crim.  L.  §  140«. 

§  558.  What  Constitutes  Criminal  Libel. — "A  malicious  pub- 
lication, by  writing,  printing,  picture,  effigy,  sign  or  otherwise 
than  by  mere  speech,  which  exposes  any  living  person,  or  the 
memory  of  any  person  deceased,  to  hatred,  contempt,  ridicule  or 
obloquy,  or  which  causes,  or  tends  to  cause  any  person  to  be 
shunned  or  avoided,  or  which  has  a  tendency  to  injure  any  per- 
son, corporation  or  association  of  persons,  in  his  or  their  business 
or  occupation,  is  a  libel.  A  person  who  publishes  a  libel  is  guilty 
of  a  misdemeanor.  A  publication  having  the  tendency  or  effect 
mentioned  in  section  242,  is  to  be  deemed  malicious,  if  no  justifi- 
cation or  excuse  therefor  is  shown.  The  publication  is  justified 
when  the  matter  charged  as  libelous  is  true,  and  was  published 
with  good  motives  and  for  justifiable  ends.  The  publication  is 
excused  when  it  is  honestly  made,  in  the  belief  of  its  truth  and 
upon  reasonable  grounds  for  this  belief,  and  consists  of  fair  com- 
ments upon  the  conduct  of  a  person  in  respect  to  public  affairs,  or 
upon  a  thing  which  the  proprietor  thereof  offers  or  explains  to 
the  public."'     N.  Y.  Penal  Code,  §§  242-244. 

The  rule  derived  from  the  authorities,  and  with  'which  most  of 


CRIMINAL     LIBEL.  883 

the  eases  can  be  reconciled,  seems  to  be  this:  When  the  words 
spoken  have  such  a  relation  that  the  profession  or  occupation  of 
the  plaintiff  tend"  to  injure  him  in  respect  to  it,  or  to  impair  con- 
fidence in  his  character  or  ability,  when,  from  the  nature  of  the 
business,  great  confidence  must  necessarily  be  reposed,  they  are 
actionable,  although  not  applied  by  the  speaker  to  the  profession 
or  occupation  of  the  plaintiff;  but  when  they  convey  only  a  gen- 
eral imputation  upon  his  character,  equally  injurious  to  any  one 
of  whom  they  might  be  spoken,  they  are  not  actionable,  unless 
such  application  can  be  made.  Cawdry  v.  Highley,  Cro.  Car. 
270;  Chaddock  v.  Briggs,  L3  Mass.  24S,  7  Am.  Dec.  137;  Davis 
v.  Ruff,  1  Cheves,  L.  17,  34  Am.  Dec.  584;  Ayre  v.  Craven,  2 
Ad.  &  El.  2;  Doyley  v.  Roberts,  3  Bing.  X.  C.  S35;  Jones  v. 
Littler,  7  Mees.  ite  W.  423;  Starkie,  Slander  &  Libel,  118;  1  New 
head.  Cas.  124;  Sandi  rson  v.  ( 'aldwell,  45  iSL  Y.  405,  6  Am.  Rep. 
105. 

§559.  The  Term  "Publication"  Defined.— "To  sustain  a 
charge  of  publishing  a  libel,  it  is  not  necessary  that  the  matter 
complained  of  should  have  been  seen  by  another.  It  is  enough 
that  the  defendant  knowingly  displayed  it,  or  parted  with  its 
immediate  custody,  under  circumstances  which  exposed  it  to  be 
seen  or  understood  by  another  person  than  himself."  N.  Y. 
Penal  Code,  §  -i45. 

This  may  be  effected  in  criminal  law  by  merely  sending  a  letter 
to  the  prosecutor  couched  in  such  terms  as  tend  to  incite  a  breach 
of  the  peace.  In  civil  eases  a  publication  may  run  to  some  third 
person  and  this  fact  must  be  shown.  In  criminal  prosecutions, 
however,  this  rule  is  not  strictly  enforced.  Odgers,  Libel  & 
Slander,  432;  Heard,  Libel  &  Slander,  £  204. 

Where  a  writer  of  a  letter,  containing  libelous  matter,  reads 
the  same  aloud  to  a  stranger,  it  is  a  publication.  When  a  charge, 
in  a  written  publication,  is  equivocal,  the  construction  of  it  is  a 
question  for  the  jury.  When  the  writing  complained  of  as 
libelous,  is  plain  and  unambiguous,  the  question,  in  a  civil  action, 
whether  it  be  a  libel  or  not,  is  a  question  of  law.  Snyder  v. 
A  ml /■■  //-.v.  <">  Barb.  43. 

§560.  Publication,  how  Proved. — The  publication  of  a  libel 
by  the  defendant  may  be  proved  by  evidence  that,  he  distributed 
it  with  his  own  hand,  or  maliciously  exposed  its  contents,  or  read 
or  sung  it  in  the  presence  of  others;  or,  if  if  were  a,  picture,  or  a 


884:  LAW    OF    EVIDENCE    IN    CRIMINAL    CASES. 

sign,  that  he  painted  it,  or  if  it  were  done  by  any  other  symbol 
or  parade,  that  he  took  part  in  it,  for  the  purpose  of  exposing  the 
plaintiff  to  contempt  and  ridicule.  But  to  show  a  copy  of  a  cari- 
cature to  an  individual  privately,  and  upon  request,  is  not  a  pub- 
lication. Nor  is  the  porter  guilty  of  publishing,  who  delivers 
parcels  containing  libels,  if  he  is  ignorant  of  their  contents.  So, 
if  one  sells  a  few  copies  of  a  periodical,  in  which,  among  other 
things,  the  libel  is  contained,  it  is  still  a  question  for  the  jury, 
whether  he  knew  what  he  was  selling.  If  the  libel  was  published 
in  a  newspaper,  evidence  that  copies  of  the  paper  containing  it 
were  gratuitously  circulated  in  the  plaintiffs  neighborhood,  though 
they  be  not  shown  to  have  been  sent  by  the  defendant  who  was 
the  publisher,  is  admissible  to  show  the  extent  of  the  circulation 
of  the  paper,  and  the  consequent  injury  to  the  plaintiff.  2 
Greenl.  Ev.  §  415,  citing  De  Libellis  Famosis,  5  Coke,  125; 
Jamie's  Case,  9  Coke,  59;  Johnson  v.  Hudson,  7  Ad.  &  El.  233; 
Rex\.  Pearce,  Peake,  75;  Smith  v.  Wood,  3  Campb.  323;  Day 
v.  Bream,  2  Mood.  &  P.  54;  Ch  ubb  v.  Flannagan,  6  Car.  <k  P. 
431;  Gathercole  v.  Miall,  15  Mees.  &  W.  319,  10  Jur.  337;  Bar- 
rows v.  Carpenter,  11  Cush.  456. 

In  an  action  for  libel  it  is  a  sufficient  allegation  of  its  publica- 
tion by  the  defendant,  that  he  was  the  proprietor  of  a  newspaper 
in  which  it  was  published.  The  statement  that  the  words  pub- 
lished are  a  libel  is  a  sufficient  allegation  of  falsehood  and  malice. 
Where  the  publication  is  not  privileged,  nor  capable  of  an  inno- 
cent construction,  it  is  the  duty  of  the  judge  to  charge  that  it  i> 
libelous.  The  rule  that  in  all  prosecutions  for  libel,  the  jury  have 
the  right  to  determine  the  law  and  the  fact,  relates  to  criminal 
proceedings  only.     Hunt  v.  Bennett,  19  X.  Y.  17:!. 

§  561.  What  the  Indictment  must  Show. — It  was  long 
since  held  that  an  indictment  must  show  on  its  face  that  the  libel 
was  written  or  printed.  2  Archb.  Crim.  Pr.  &  PI.  (7th  ed.)  223, 
224.  It  is  the  rule  that,  where  an  exception  is  stated  in  the  stat- 
ute defining  the  offense,  the  indictment  must  show  that  the  case 
is  not  within  the  exception.  People  v.  Brown,  6  Park.  Crim. 
Rep.  666.  In  Jefferson  v.  People,  101  1NT.  Y.  19,  this  rule  is  re- 
stated; but  it  was  held  not  to  be  applicable  to  the  indictment  in 
that  case.  In  Harris  v.  White,  81  K  Y.  532,  it  was  held  that, 
where  the  exception  is  contained  in  the  enacting  clause,  the  in- 
dictment must  negative  the  exception.     There  are  no  exceptions 


CRIMINAL,     LIBEL.  b85 

to  a  rule  that  an  indictment  upon  a  statute  must  state  all  the 
facts  and  circumstances  which  constitute  the  statutory  offense,  so 
as  to  bring  the  accused  perfectly  within  the  provisions  of  the 
statute.  People  v.  Allen,  5  Denio,  76;  People  v.  Taylor,  3 
Denio,  91;  People  v.  Burns,  53  Hun,  271;  Peoples.  Dumar,  106 
N.  Y.  o(»5;  Phelps  v.  People,  72  N.  Y.  319.  Even  in  an  action 
to  recover  damages  for  fraud  it  is  the  established  rule  that,  where 
the  proof  is  equally  consistent  with  guilt  or  innocence,  there  must 
be  a  verdict  for  the  defendant.  Morris  v.  Talcott,  96  N.  Y.  100. 
It  is  also  settled  that  a  party  in  pleading  must  clearly  state  his 
cause  of  action  or  defense;  and.  when  a  statement  in  a  pleading  is 
susceptible  of  two  meanings,  the  one  most  unfavorable  to  the 
pleader  must  be  adopted.  Clark  v.  Dillon,  97  aST.  Y.  370.  In 
criminal  cases  it  is  the  universal  rule  that,  where  the  indictment 
will  admit  of  a  construction  in  favor  of  innocence,  it  should  be 
adopted.  This  doctrine  is  illustrated  in  Pe&ple  v.  Standish,  6 
Park.  Crhn.  Rep.  111.  In  that  case  the  defendant  was  indicted 
for  illegal  voting.  It  was  alleged  generally  that  he,  "not  then 
and  there  being  a  qualified  voter,''  did  vote,  etc.  The  particular 
disqualification  under  which  he  rested  was  not  alleged.  It  was 
proven  upon  the  trial  that  the  defendant  made  a  bet,  which  under 
the  statute  disqualified  him.  The  court  held  that,  the  particular 
disqualification  should  have  been  alleged  in  the  indictment. 
"Those  facts  which  give  character  to  the  act.  and  which  render  it 
criminal,  should  be  alleged  in  the  indictment,  otherwise  the  great 
object  of  pleading — that  of  informing  the  party  what  he  is  called 
upon  to  answer — will  be  defeated." 

An  indictment  for  a  criminal  libel  cannot  be  sustained  if  the 
prosecutor  or  libelee,  in  order  to  sustain  a  civil  action  for  the  of- 
fense, must  allege  special  damages. 

§  562.  Outline  of  Plaintiff's  Proofs.— "  The  natural  order  of 
the  proofs  in  actions  for  defamation  on  the  part  of  the  plaintiff, 
where  the  general  issue  has  been  pleaded,  is : 

"(1 )  Plaintiff's  special  character  and  extrinsic  matter. 

"(2)   Publication  of  the  defamatory  matter. 

"(3)  The  colloquium  and  innuendoes. 

"(1)  Malice. 

"(5)    Damage. 

Where  the  words  are  actionable  only  by  reason  of  the  plaintiff's 
holding  an  office  or  exercising  a  profession  or  trade,  the  plaintiff 


886  LAW    OF    EVIDENCE    IN    CRIMINAL   CASKS. 

must  prove  that  he  held  such  office  or  exercised  such  profession 
or  trade  at  the  date  of  publication,  and  that  the  words  complained 
of  were  spoken  of  him  in  that  capacity."  Newell.  Defamation, 
Slander  &  Libel,  751. 

Upon  a  recent  trial,  plaintiff  was  permitted  to  prove,  under  ob- 
jection and  exception,  the  nature  of  his  business,  and  that  he  was 
a  married  man.  Held,  no  error;  and  this  proof  was  competent, 
not  to  show  special  damages,  as  none  had  been  alleged,  but  as 
bearing  upon  the  hurtful  tendency  of  the  libel  and  the  general 
damage.  Morey  v.  Morning  Journal  Asso.  9  L.  R.  A.  621,  123 
23".  Y.  207. 

Repetition  of  slanderous  charge  prior  to  the  commencement  of 
the  suit  may  be  proven  to  show  motive.  Root  v.  Lowndes,  6 
Hill,  518,  41  Am.  Dec.  762;  Johnson  v.  Brown,  57  Barb.  118; 
Bassell  v.  Elmore,  48  K  Y.  561;  Gray  v.  Nellis,  6  How.  Pr. 
290;  Inman  v.  Foster,  8  Wend.  602;  Distin  v.  Rose,  69  N.  Y. 
122;  Clapp  v.  Devlin,  3  Jones  &  S.  170;  Flanders  v.  Groff,  25 
Hun,  553;  Titus  v.  Sumner,  44  N.  Y.  266;  Miller  v.  Kerr,  2 
McCord,  L.  285,  13  Am.  Dec.  722. 

There  is  a  conflict  of  authority  as  to  whether  repetitions  subse- 
quent to  the  commencement  of  the  suit  may  be  shown.  In  addi- 
tion to  the  authorities  above  cited,  see  Frazer  v.  McClosk.ey,  60 
X.  Y.  337, 19  Am.  Rep.  193;  Distin  v.  Rose,  69  N.  Y.  122;  Storch 
v.  Buffalo  German  R.  Printing  Asso.  22  Alb.  L.  J.  135;  John- 
son v.  Brown,  57  Barb.  118;  Miller  v.  Kerr,  2  McCord  L.  285, 
13  Am.  Dec.  722,  1  Whart.  Crim.  Ev.  p.  44,  §  32;  Abbott,  Trial 
Brief,  6G6;  Kennedy  v.  Gifford,  19  Wend.  296. 

On  a  trial  the  witness  was  asked  on  behalf  of  the  people, 
'•When  you  read  this  article  did  you  recognize  its  application  or 
any  particular  individual?"  He  answered,  "I  did."  Then  he  was 
asked,  "Who  was  the  person  that  you  recognized  that  this  article 
referred  to?"  and  he  answered  "Leo  Oppenheim."  This  evidence 
was  improper.  It  was  for  the  people  to  show  facts  from  which 
the  jury  might  infer  that  Oppenheim  was  the  person  intended  by 
defendant.  The  testimony  of  witnesses  that  they  recognized 
Oppenheim  as  referred  to,  was  only  the  statement  of  their  opin- 
ion. This  matter  was  not  one  for  experts.  Their  opinion  must 
have  been  based  upon  facts  known  to  them.  They  should  have 
testified  only  to  such  facts.  If  this  kind  of  testimony  were  proper, 
then  the  defendant  could  have  called  witnesses  to  testify  that  they 


CRIMINAL     LIBEL.  887 

•did  not  recognize  Oppenheim  as  the  person  referred  to.  But  such 
testimony  would  be  plainly  improper.  This  principle  is  distinctly 
decided  in  Van  Vechten  v.  Hopkins,  5  Johns.  211,  1  Am.  Dec. 
339;  Gibson  v.  Williams,  4  Wend.  320;  Maynard  v.  Beardsley, 
7  Wend.  561,  22  Am.  Dec.  595;  Weed  v.  Bibbins,  32  Barb.  315, 
and  by  implication  in  Wright  v.  Page,  36  Barb.  Ill;  People  v. 
Parr,  5  K  Y.  Crim.  Rep.  31. 

§  563.  A  Restriction  upon  Plaintiff's  Evidence  Noted. — 

"The  plaintiff  should  never  be  permitted  to  give  in  evidence  words 
which  might  be  the  subject  of  another  action.  Root  v.  Lowndes, 
6  Hill,  518,  11  Am.  Dec.  T62,  per  Bronson,  J.;  DeFries  v.  Da- 
vies,  7  Car.  &  P.  112,  per  Tindal,  J.  The  reason  is  obvious;  the 
defendant  might  be  compelled  to  pay  damages  twice  for  the  same 
injury.  In  the  present  case,  the  words  allowed  to  be  proven, 
being  actionable^/'  6yj,  and  having  been  spoken  after  the  com- 
mencement of  the  action,  a  second  action  would  have  been  clearly 
maintainable  for  them.  They  were  spoken  in  September,  1871, 
and  the  trial  was  in  September,  1872.  In  KeenJiolts  v.  Becker, 
3  Denio,  316,  it  was  expressly  adjudicated  that  words  spoken  after 
the  commencement  of  the  action  were  not  admissible  to  aggravate 
the  damages;  and  we  see  no  reason  to  question  the  correctness  of 
that  decision."  Rapallo,  J.,  in  Frazer  v.  McClosTcey,  60  Is.  Y. 
338,  19  Am.  Kep.  193. 

§  561.  Evidence  in  Aggravation  of  Damages. — The  violence 
of  the  language,  the  nature  of  the  imputation  conveyed  and  the 
fact  that  the  defamation  was  deliberate  and  malicious  will  aggra- 
vate the  damages.  All  the  circumstances  attending  the  publica- 
tion may,  therefore,  be  given  in  evidence,  and  any  previous 
transaction  between  the  plaintiff  and  the  defendant  which  has 
any  direct  bearing  on  the  subject-matter  of  the  action,  or  is  a  nec- 
essary part  of  tho  history  of  the  case;  the  rank  or  position  in 
society  of  the  parties;  that  the  attack  was  entirely  unprovoked; 
that  defendant  could  easily  have  ascertained  that  the  charge  he 
made  was  false;  and  evidence  may  be  given  to  show  that  the 
defendant  was  culpably  reckless  or  grossly  negligent  in  the  mat- 
ter; the  mode,  the  extent  and  the  long  continuance  of  publication. 
Such  evidence  is  admissible  with  a  view  to  damages,  although  the 
publication  has  been  admitted  in  the  pleadings.  The  defendant's 
subsequent  conduct  may  aggravate  the.  damages,  as  if  he  has 
refused  to  listen  to  any  explanation  or  to   retract   the   charge  he 


&S8  LAW    OF    EVIDENCE    IN    CRIMINAL    CASES. 

had  made.  Lea  v.  Robertson,  1  Stew.  (Ala.)  138;  Gorman  v. 
Sutton,  32  Pa.  247;  Fero  v.  Ruscoe,  4  K  Y.  162.  Newell, 
Defamation,  Slander  &  Libel,  785. 

§  565.  Malice  as  an  Element,  Presumptions  as  to. — Malice 
is  a  necessary  ingredient  of  the  offense;  but  it  is  not  necessary  to 
render  an  act  malicious  that  the  party  be  actuated  by  a  feeling  of 
hatred  or  ill-will,  or  that  he  pursue  or  entertain  any  general  bad  pur- 
pose or  design.  Express  malice  may  be  shown  by  other  libels  net 
materially  different;  and  untruthfulness  and  other  circumstances 
raise  an  inference  of  express  malice.  It  is  a  question  of  fact  to 
be  submitted  to  the  jury.  The  mere  fact  of  publication  shows 
malice.  Malice  in  a  legal  sense  means  a  wrongful  act  done  inten- 
tionally, without  just  cause  or  excuse.  Desty,  Am.  Crim.  L. 
§  140  b.,  citing  Com.  v.  Snelling,  32  Mass.  337;  Com.  v.  Bonner, 
9  Met.  410;  Com.  v.  Blanding,  3  Pick.  304,  15  Am.  Dec.  214. 
See  2  Whart.  Am.  Crim.  L.  (8th  ed.)  §  1648;  Com.  v.  Harmon, 
2  Gray,  289;  MoCullough  v.  Mclntee,  13  U.  C.  C.  P.  441;  White  v. 
Mcholls,  44  U.  S.  3  How.  266,  11  L.  ed.  591;  Wheeler  v.  Nesbiitr 
65  U.  S.  24  How.  544,  16  L.  ed.  765;  Bromage  v.  Prosser,  4 
Barn.  &  C.  247;  Fairman  v.  Ives,  1  Dowl.  &  R.  255;  Tltompson 
v.  Shackell,  1  Mood.  &  M.  1S7;  Maynard  v.  Firemans  Fund 
Ins.  Co.  34  Cal.  48,  91  Am.  Dec.  672;  Reg.  v.  Gat/<ercole,2  Lew. 
C.  C.  237,  ante,  §  8  a. 

The  law  not  only  imputes  malice  to  the  defendant,  but  presumes 
that  damages  have  been  sustained  by  the  plaintiff  in  consequence 
of  the  unlawful  act  of  the  defendant. 

The  plaintiff  cannot,  by  innuendoes,  extend  the  meaning  of  the 
words  beyond  what  is  justified  by  the  words  themselves,  and  the 
extrinsic  facts  with  which  they  are  connected.  And  when,  how- 
ever, they  convey  only  a  general  imputation  upon  his  character, 
equally  injurious  to  any  one  of  whom  they  might  be  spoken,  they 
are  not  actionable,  unless  such  application  is  made.  /Sanderson  v. 
Caldwell,  45  K  Y.  398,  6  Am.  Rep.  105. 

"A  publication  .  .  .  is  to  be  deemed  malicious,  if  no  jus- 
tification or  excuse  therefor  is  shown.  The  publication  is  justified 
when  the  matter  charged  as  libelous  is  true,  and  was  published 
with  good  motives  and  for  justifiable  ends.  The  publication  is 
excused  when  it  is  honestly  made,  in  the  belief  of  its  truth  and 
upon  reasonable  grounds  for  this  belief,  and  consists  of  fair  com- 
ments upon  the  conduct  of  a  person  in  respect  of  public  affairs, 


CRIMINAL     LIBEL.  880 

or  upon  a  tiling  which  the  proprietor  thereof  offers  or  explains  to 
the  public."     K  Y.  Penal  Code,  §  244. 

Presumption  of  malice  can  only  arise  when  the  publication,  on 
its  face,  is  capable  of  conveying  an  injurious  effect.  Every  man 
is  presumed  to  foresee  and  intend  all  the  mischievous  consequences 
that  may  justly  be  expected  to  flow  from  his  voluntary  acts.  But 
the  cases  of  constructive  malice  are  exclusively  such  as  involve 
words  capable  of  bearing  in  themselves  a  libelous  meaning.  The 
law  in  such  cases  reasonably  presumes  no  more  than  this,  and 
when  a  hidden  defamatory  meaning  is  sought  to  be  attributed  to 
words  in  themselves  innocent,  and  on  their  face  containing  no 
such  sense,  by  extrinsic  facts  outside  and  independent  of  the  pub- 
lication itself,  the  knowledge  of  such  facts  must  be  shown,  by 
averment  and  proof,  to  have  existed  in  the  breast  of  the  defend- 
ant at  the  time  of  publication.  Knickerbocker  L.  Ins.  Co.  v. 
Ecclesme,  6  Abb.  Pr.  X.  S.  30. 

§  566.  Privileged  Communications.  —  The  occasion  that 
makes  a  communication  privileged  is  when  one  has  an  interest  in 
a  matter,  or  a  duty  in  regard  to  it,  or  there  is  a  propriety  in  utter- 
ance, and  he  makes  a  statement  in  good  faith  to  another  who  has 
a  like  interest  or  duty,  or  to  whom  a  like  propriety  attaches  to 
hear  the  utterance.  Van  Wyck  v.  Aspinwall,  17  X.  Y.  190; 
Klinckv.  Colby,  46  X.  Y.  431;  Sunderlin  v.  Bradstreet,  46  X. 
Y.  191,  7  Am.  Rep.  322.  And,  in  a  qualified  way,  the  occasion 
exists  when  there  has  been  put  forth  a  publication  of  general 
public  interest,  or  the  publication  thus  made  in  itself  is  one  to 
which  public  interest  has  been  invited.  Then  there  is  a  right  to 
make  comment  upon  that  publication.  And  like  to  this  are  the 
acts  and  conduct  of  public  functionaries,  and,  of  course,  their 
official  productions,  when  made  public  by  themselves  or  in  the 
due  course  of  the  public  business.  Hamilton  v.  JSho,  81  N.  Y. 
116. 

"A  communication  made  to  a  person  entitled  to,  or  interested 
in  the  communication,  by  one  who  was  also  interested  in  or  enti- 
tled to  make  it,  or  who  stood  in  such  a  relation  to  the  former  as 
to  afford  a  reasonable  ground  for  supposing  his  motive  innocent, 
is  presumed  not  to  be  malicious,  and  is  called  a  privileged  commu- 
nication."    X.  V.  Penal  Code,  §  253. 

The  general  rule  is  that  in  the  case  of  a  libelous  publication  the 
law    implies    malice   and    infers  some   damage.      What   are  called 


890  LAW    OF    EVIDENCE    IN    CRIMINAL   CASES. 

privileged  communications  are  exceptions  to  this  rule.  Such 
communications  are  divided  into  several  classes,  generally  formu- 
lated thus  :  "A  communication  made  bona  fide  upon  any  subject- 
matter  in  which  the  party  communicating  has  an  interest,  or,  in 
reference  to  which  he  has  a  duty,  is  privileged  if  made  to  a  person 
having  a  corresponding  interest  or  duty,  although  it  contained 
criminating  matter  which,  without  this  privilege,  would  be  slan- 
derous and  actionable;  and  this  though  the  duty  be  not  a  legal  one, 
but  only  a  moral  or  social  duty  of  imperfect  obligation."  The 
rule  was  thus  stated  in  Harrison  v.  Bush,  5  El.  &  Bl.  344,  and 
has  been  generally  approved  by  judges  ^nd  text-writers  since. 
In  Toogoodx.  Spyring,  1  Cromp.  M.  &  R.  181,  an  earlier  case,  it 
was  said  that  the  law  considered  a  libelous  "publication  as  mali- 
cious unless  it  is  fairly  made  by  a  person  in  the  discharge  of  some 
public  or  private  duty,  whether  legal  or  moral,  or  in  the  conduct 
of  his  own  affairs  in  matters  where  his  interest  is  concerned;'1  and 
that  statement  of  the  rule  was  approved  by  Folger,  J.,  in  Klinck 
v.  Colby,  46  X.  Y.  427,  and  in  Hamilton  v.  Eno,  81  N.  Y.  116. 
In  White  v.  MchoUs,  44  U.  S.  3  How.  266,  291,  11  L.  ed.  591, 
602,  it  was  said  that  the  description  of  cases  recognized  as  privi- 
leged communications  must  be  understood  as  exceptions  to  the 
general  rule,  and  "as  being  founded  upon  some  apparently  recog- 
nized obligation  or  motive,  legal,  moral  or  social,  which  may  fairly 
be  presumed  to  have  led  to  the  publication,  and,  therefore,  prima 
fade  relieves  it  from  that  just  implication  from  which  the  general 
law  is  deduced." 

"Where  a  communication  is  privileged  on  its  face,  plaintiff  must 
show  both  malice  and  want  of  probable  cause.  Stret  ty  v.  Woody 
15  Barb.  105. 

The  legend  "private  and  confidential"  above  the  caption  of  a 
letter,  or  the  word  "personal"  or  words  of  similar  import  will  not, 
as  matter  of  law,  impart  the  status  of  privilege  to  the  writing  un- 
less the  evidence  shows  some  relationship  between  the  parties 
which  may  justly  be  regarded  as  confidential.  Bradley  v.  Heath, 
12  Pick.  163,  22  Am.  Dec.  41S.  See  Byam  v.  Collins,  2  L.  R. 
A.  129,  111  X.  Y.  143. 

This  principle  applies  to  other  cases  of  the  same  nature,  and  is 
meant  to  protect  the  communications  of  business  and  the  necessary 
confidence  of  man  in  man,  as  where  one  employed  by  a  sheriff  to 
ascertain  and  inform  him  of  the  fasts  relating  to  an  interference 


CK1MINAL     LIBEL.  ,  891 

with  a  levy  upon  certain  cattle,  wrote  a  letter  charging  the  plain- 
tiff with  feloniously  taking  them  {Washburn  v.  Cooke,  3  Denio, 
110)  or  where,  at  the  request  of  the  father,  a  person  made  inquiry 
.as  to  the  character  of  his  daughter's  husband.  Atwillv.  Mackin- 
tosh^ 120  Mass.  177.  In  each  instance  the  report  if  made  in  good 
faith,  and  reasonably  believed  true,  was  held  to  be  privileged. 
Atwill  v.  Mackintosh,  supra.  So  it  is  said  to  extend  to  the  con- 
fidential communications  of  friendship  (Holt,  Libel,  235)  and  will 
undoubtedly  include  every  case  where  in  the  discharge  of  any 
legal,  natural,  or  social  obligation,  the  defendant  states  what  he 
honestly  believes  the  plaintiff's  character  to  be,  whatever  the 
charges  may  be  which  he  thus  imputes  to  him.  Thus  in  McDou- 
gallv.  Claridge,  1  Campb.  267,  it  was  held  that  a  letter  written 
confidentially  concerning  a  solicitor,  and  under  an  impression  that 
its  statements  were  well  founded,  could  not  be  the  subject  of  an 
action;  and  in  Hewser  v.  Do  ton  son,  mentioned  in  Buffer's  Nisi 
Prius,  page  8,  where  the  defendant  said  "iu  confidence  and  friend- 
ship, by  way  of  warning,"  to  one  about  dealing  with  the  plaintiff, 
words  affecting  his  credit,  no  action  would  lie  because  the  manner 
of  speaking  repelled  the  idea  of  malice.  In  White  v.  Nicholls^ 
44  U.  S.  3  How.  286,  11  L.  ed.  600,  Justice  Daniel  enumerates 
among  such  communications,  "words  spoken  in  confidence  and 
friendship  as  a  caution,"  and  applying  the  same  principle  to  spe- 
cific cases,  it  is  laid  down  in  a  recent  work  on  this  subject  (Od- 
gers,  Libel  &  Slander,  210)  that  a  father,  guardian  or  intimate 
friend  may  warn  a  young  man  against  associating  with  a  particu- 
lar individual,  or  may  warn  a  lady  not  to  marry  a  particular  sui- 
tor, though  under  the  same  circumstances  a  stranger  could  not  do 
so.     Byam  v.  Collins,**  L.  E.  A.  129,  111  N.  Y.  143. 

In  an  action  for  libel  it  is  for  the  court  to  determine  whether 
the  alleged  libel  was  a  privileged  communication;  but  the  question 
of  good  faith,  belief  in  the  truth  of  the  statement,  and  the  exist- 
ence of  actual  malice  remain  for  the  jury.  The  rule  is  the  same 
where  the  alleged  libelous  charge  is  made  against  a  public  officer 
as  such.     Hamilton  v.  Eno,  81  N.  Y.  116. 

§  567.  Rules  as  to  Justification. —  Winn  one  who  is  sued 
for  defamation  deliberately  reaffirms  the  slander,  and  puts  it  on 
the  records  of  the  court  by  way  of  justification,  if  he  fail  to  estab 
lish  the  truth  of  his  plea,  he  has  done  the  plaint  ill'  a  new  injury, 
which  may  properly  be  regarded  as  an  aggravation  of  the  original 


892  LAW    OF    EVIDENCE    IN    CKIMINAL    CASES. 

wrong.  It  is  said  that  the  attempt  to  justify  may  be  made  in 
good  faith,  or  the  honest  belief  that  the  plaintiff  is  guilty  of  the 
matter  laid  to  his  charge.  That  may  be  so,  but  the  injury  to  the 
plaintiff  is  not  diminished  by  the  mistaken  belief  of  the  defend- 
ant. And  when  a  man  is  called  into  court  for  charging  another 
with  a  crime,  he  ought  to  pause  and  examine  before  he  repeats 
the  charge,  and  places  it  on  record;  and  if  he  makes  a  mistake  in 
such  a  matter,  it  should  be  at  his  peril,  and  not  at  the  peril  of  the 
injured  party. 

The  justification  must  be  as  broad  as  the  charge;  and  if  the  de- 
fendant fails  in  an  attempt  to  prove  it  true,  he  is  entitled  to  no 
benefit  from  the  evidence  which  may  have  tended  in  that  direc- 
tion. There  is  no  such  thing  as  a  half-way  justification.  When 
several  distinct  things  are  charged,  the  defendant  may  justify  as- 
to  one,  though  he  may  not  be  able  to  do  so  as  to  all;  but  as  to  any 
one  charge,  the  justification  will  either  be  everything  or  nothing. 
Fero  v.  Ruscoe,  1  K  Y.  162. 

A  newspaper  article  published  against  the  character  of  the  per- 
son addressed,  and  which  is  referred  to  in  a  "threatening  letter", 
is  admissible  as  tending  to  explain  the  reason,  motive,  and  the  ob- 
ject of  the  writer  of  the  letter.     People  v.  Ton',,  Hi,  81  Cal.  275. 

§  568.  Repetition  of  a  Slander. — The  repetition  of  the  slan- 
der to  a  third  person  without  any  interest  existing  to  call  for  the 
communication,  is  not  admissible;  but  when  the  slander  is  repeated 
to  be  connected  with  instructions  injurious  to  the  plaintiff,  and 
necessarily  connected  with  the  business  or  interests  of  the  man  to 
whom  the  slander  was  spoken,  it  may  be  used  for  the  purpose  of 
showing  damage.  Ohnsted  v.  Brown,  12  Barb.  657;  Fowles  v. 
Bowen,S0N.Y.  22. 

§  569.  Malice,  how  Proved. — Although  evidence  is  admis- 
sible to  prove  the  general  character  of  the  plaintiff  to  be  bad,  yet 
no  mere  reports  or  rumors,  not  amounting  to  proof  of  gen- 
eral character,  nor  information  obtained  by  the  defendant  from 
others  as  to  the  truth  of  the  charge,  unless  accompanied  by  proof 
that  such  information  is  true,  can  be  received  for  the  purpose  of 
rebutting  the  presumption  of  malice.  This  necessarily  reduces 
the  defendant  to  the  proof  of  facts  and  circumstances  known  to 
him  at  the  time  of  making  the  charge,  having  a  tendency  to  in- 
duce a  belief  of  its  truth,  as  the  only  means  of  showing  a  want  of 


CRIMINAL     LIBEL.  893 

malice.  Bush  v.  Prosser,  11  N.  T.  347.  In  this  same  case, 
Selden,  J.,  says :  "  The  defendant  has  the  right  to  prove  the 
absence  of  malice  in  mitigation  of  the  verdict,  and  to  do  this  it  is 
indispensable  to  prove  that  he  believed,  and  had  some  reason  to 
believe,  the  charge  to  be  true  when  it  was  made.  There  are  but 
two  conceivable  modes  of  doing  it,  one  bj  proving  that  he 
received  such  information  from  others  as  induced  him  to  believe 
the  charge  to  be  true;  the  other  by  showing  the  existence  of  facts 
within  his  knowledge  calculated  to  produce  a  belief.,'  In  Cooper 
v.  Barber,  24  Wend.  105,  Bronson,  J.,  says :  "Facts  and  circum- 
stances which  tend  to  disprove  malice,  by  showing  that  the  de- 
fendant, though  mistaken,  believed  the  charge  true  when  it  was 
made,  may  be  given  in  evidence  in  mitigation  of  damages."  See 
also  Bisbey  v.  Shaw,  VI  X.  Y.  t'>7. 

§  570.  Evidence  of  Intent  Material. — Where  an  act  innocent 
in  itself,  becomes  criminal,  when  done  with  a  particular  intent, 
that  intent  is  the  material  fact  to  constitute  the  crime.  Bex  v. 
Withers,  3  T.  It.  420.  And  I  think  there  cannot  be  a  doubt, 
that  the  mere  publication  of  a  paper  is  not,  per  se,  criminal;  for 
otherwise,  the  copying  of  the  indictment  by  the  clerk,  or  writing 
a  friendly  and  admonitory  letter  to  the  father,  on  the  vices  of  his 
son,  would  be  criminal.  The  intention  of  the  publisher,  and 
every  circumstance  attending  the  act,  must  therefore  be  cogniz- 
able by  the  jury  as  questions  of  fact.  And  if  they  are  satisfied 
that  the  publication  is  innocent;  that  it  has  no  mischievous  or 
evil  tendency;  that  the  mind  of  the  writer  was  not  in  fault;  that 
the  publication  was  inadvertent,  or  from  any  other  cause,  was  no 
libel,  how  can  they  conscientiously  pronounce  the  defendant 
guilty  from  the  mere  fact  of  publication?  People  v.  Croswell,  3 
Johns.  Cas.  364. 

•  71.  Accused  may  Swear  to  his  Intent.— To  constitute  a 
crime,  there  must  in  all  cases  be  a  criminal  intent.  Peg.  v.  Mulr 
lins,  3  Cox,C.C.  526;  People  v.  Farrell,  30  Gal.  316;  St.  Cha 
v.  O'Mailey,  IS  111.  407;  Campbell  v.  Com.  s4  Pa.  L97;  Genet  v. 
Mitchell,  7  Johns.  130;  People  v.  Sullivan,  4  N.  Y.  Crim.  Rep. 
197.  At  one  time  it  was  looked  upon  as  doubtful  whether  the 
party  accused  could  swear  directly  as  to  his  intent  when  the  ques- 
tion was  involved  in  the  issue.  In  People  v.  Baker,  96  X.  V. 
340  where  the  indictment  was  for  obtaining  property  under  false 
pretenses,  the  defendant  was  asked  by  his  counsel   to  stale  what 


894  LAW    OF    EVIDENCE    IN    CRIMINAL    CASES. 

was  his  intention  in  receiving  the  $575.  This  was  objected  toy 
excluded,  and  held  error.  The  same  principle  is  decided  in  Mc- 
Kown  v.  Hunter,  30  JSL  Y.  625,  was  a  case  for  malicious  prosecu- 
tion. Another  illustration  is  found  in  Kerrains  v.  People,  60  N. 
Y.  228,  14  Am.  Rep.  158,  which  was  the  case  of  an  assault  with  a 
deadly  weapon  with  intent  to  kill.  The  question  in  this  case  was  : 
"  What  was  your  intention  in  taking  the  axe  from  the  shed  ?"  It 
was  rejected.  The  court,  on  appeal,  held  this  to  be  error,  and 
reversed  the  judgment. 

§  572.  Fair  Criticism  Allowed. — Where  the  evidence  shows 
that  the  libelous  matters  complained  of  were  in  the  way  of  com- 
ments openly  made  upon  the  acts  and  conduct  of  public  officers 
in  matters  of  public  interest  and  importance,  and  if  they  are 
within  the  limits  of  a  fair  and  honest  criticism,  and  are  not 
inspired  by  actual  malice  they  are  privileged  by  the  occasion,  and, 
therefore,  not  libelous.  Folkard,  Starkie,  Slander  &  Libel  (4th 
Eng.  ed.)  p.  311,  §  216.  The  existence  of  the  privilege  does  not 
depend  upon  the  truth  of  the  statements  made.  Folkard,  Starkie^ 
Slander  &  Libel,  p.  319,  §  256;  King  v.  Root,  4  Wend.  113; 
Clark  v.  Molyneaux,  L.  R.  3  Q.  B.  Div.  247.  The  only  limit  to 
the  privilege,  is  that  the  comments  shall  be  within  the  limits  of  a 
fair  and  honest  criticism  and  without  actual  malice.  Campbell  v. 
Spottiswoode,  32  L.  J.  Q.  B.  185;  Cooper  v.  Lawson,  8  A<1.  &  El. 
74<>;  Wason  v.  Walter,  38  L.  J.  Q.  B.  34;  Henwobd  v.  Harrison, 
L.  K.  7  C.  P.  606;  Tumbull  v.  Bird,  2  Fost.  &  F.  508;  Eastwood 
v.  ILAmes,  1  Fost.  &  F.  349;  Davis  v.  Duncan,  L.  R.  9  C.  P. 
396;  Spill  v.  Maule,  L.  R.  4  Exch.  232;  Klinok  v.  Colly,  46  N. 
Y.  427;  Clark  v.  Molyneaux,  supra.  The  question  of  malice  is 
exclusively  for  the  jury  whenever  (as  in  the  case  of  privilege) 
express  malice — not  legal  malice — must  be  proved.  Clark  v. 
Molyneaux  and  Klinch  v.  Colby,  supra. 

In  criticising  the  productions  of  an  author,  the  laws  allows  con- 
siderable latitude.  The  interests  of  literature  and  science  require 
that  the  productions  of  authors  shall  be  subject  to  fair  criticism; 
that  even  some  animadversion  may  be  permitted,  unless  it  appears 
that  the  critic,  under  the  pretext  of  reviewing  his  book,  takes  an 
opportunity  of  attacking  the  character  of  the  author,  and  of  hold- 
ing him  up  as  an  object  of  ridicule,  hatred,  or  contempt.  In 
other  words  the  critic  may  say  what  he  pleases  of  the  literary 
merits  or  demerits  of  the  published  production  of  an  author;  but 


CRIMINAL     LIBEL.  895 

with  respect  to  his  personal  rights,  relating  to  his  reputation,  the 
critic  has  no  more  privilege  than  any  other  person  not  assuming 
the  business  of  criticism.  He  may  say,  as  Burke  said  of  the  style 
of  Gibbon,  that  it  is  execrable;  but  we  cannot  say  that  the  author 
himself  is  execrable,  or  that  he  is  personally  affected  or  absurd  or 
wayward. 

He  may  say  of  the  orator  who  uses  excessive  gesticulation  and 
vociferation,  mistaking  extravagant  action  and  verbosity  for  elo- 
quence, that  he  has  all  the  contortions,  without  any  of  the  inspir- 
ation of  the  Sybil.  He  can  say  of  the  player  that  he  mouths  his 
speech,  as  many  players  do,  or  that  "  he  saws  the  air  too  much 
with  his  hand,"  or  that  he  "  tears  a  passion  to  tatters,  to  very  rags, 
to  split  the  ears  of  the  groundling-.'" 

The  critic  can  call  a  painting  a  daub  and  an  abortion,  but  he 
cannot  call  the  painter  himself  a  low,  discreditable  pretender  and 
an  abortion.  The  most  comprehensive  freedom  in  animadverting 
upon  the  productions  and  actions  of  public  men  is  essential  to  the 
very  existence  of  civil  and  political  liberty,  and  to  the  progress  of 
civilization,  and  I  heartily  say  with  Lord  Ellenborough,  in  Tdbart 
v.  T'q'per,  1  Campb.  350  :  ''Liberty  of  criticism  must  be  allowed, 
or  we  should  have  neither  purity  of  taste  nor  of  morals.  Fair 
discussion  is  essentially  necessary  to  the  truth  of  history  and  the 
advancement  of  science.  That  publication,  therefore,  I  shall 
never  consider  a  libel  which  has  for  its  object  not  to  injure  the 
reputation  of  any  individual,  but  to  correct  misrepresentation  of 
fact,  to  refute  sophistical  reasoning"  to  expose  a  vicious  taste 
for  literature,  or  to  censure  what  is  hostile  to  morality." 

"  A  fair  and  candid  criticism,  though  severe,  of  a  literary  work, 
exposing  its  faults,  is  privileged;  but  if  the  criticism  is  made  the 
vehicle  of  personal  calumny  of  the  author,  aside  from  the  legiti- 
mate purpose  of  criticism,  it  becomes  libelous.  So  of  a  communi- 
cation made  in  good  faith  by  a  person  in  the  discharge  of  some 
private  duty,  legal  or  moral,  or  in  the  conduct  of  his  own  affairs 
or  in  matters  in  which  he  is  interested;  such  as  a  warning  to  a 
relative  not  to  marry  a  certain  person  for  special  reasons  affecting 
his  character;  or  a  protest  by  inhabitants  of  a  school  district 
against  the  character  of  an  applicant  to  teach;  or  a  complaint  to  a 
superior  against  an  inferior  officer,  in  order  to  obtain  redress;  or 
an  account  of  the  character  of  a  servant  in  answer  to  proper 
inquiry;  or  a  report  of  a  servant's  conduct  to  his  master;  or  a  true 


806  LAW    OF    EVIDENCE    IN    CRIMINAL    CASES. 

statement  in  defense  of  one's  own  character  and  interests,  or  to 
enforce  the  rules  of  a  society,  or  to  aid  in  the  exposure  or  detec- 
tion of  crime,  or  to  protect  the  public  or  a  friend  from  being 
swindled  or  otherwise  injured.  Such  communications,  although 
to  some  extent  false,  are  privileged  if  made  without  malice  and 
for  justifiable  ends."  Browne,  Crim.  L.  78,  citing  Wright  v. 
Wood  gate,  2  Cromp.  M.  &  R.  573. 

The  mere  theoretical  discussion  of  abstract  propositions  relating 
to  the  science  of  government,  or  to  questions  of  political  economy 
or  individual  rights  are  beyond  the  pale  of  criminal  cognizance. 
It  is  only  where  such  discussion  assumes  an  intemperate  or  inflam- 
matory aspect,  directly  menaces  the  peace  and  good  order  of  soci- 
ety, or  incites  the  populace  to  riot  and  revolution  that  restraint 
may  be  imposed  in  the  way  of  criminal  indictment. 

The  great  Homestead  riot  cases  in  Pennsylvania  during  the 
summer  of  1892  afford  instructive  reading  as  elucidative  of  this 
topic,  also  of  the  far  wider  questions  involved  in  the  crime  of 
treason. 

§  573.  Rule  as  to  Editors  and  Reporters. — "A  prosecution 
for  libel  cannot  be  maintained  against  a  reporter,  editor,  pub- 
lisher, or  proprietor  of  a  newspaper,  for  the  publication  therein, 
of  a  fair  and  true  report  of  any  judicial,  legislative  or  other  pub- 
lic and  official  proceeding,  or  of  any  statement,  speech,  argument 
or  debate  in  the  course  of  the  same,  without  proving  actual  mal- 
ice in  making  the  report. 

"Every  editor,  or  proprietor  of  a  book,  newspaper  or  serial,  and 
every  manager  of  a  partnership  or  incorporated  association,  by 
which  a  book,  newspaper  or  serial  is  issued,  is  chargeable  with  the 
publication  of  any  matter  contained  in  such  book,  newspaper  or 
serial.  But  in  every  prosecution  for  libel  the  defendant  may  show 
in  his  defense  that  the  matter  complained  of  was  published  with- 
out his  knowledge  or  fault  and  against  his  wishes,  by  another  who 
had  no  authority  from  him  to  make  the  publication,  and  whose 
act  was  disavowed  by  him  so  soon  as  known."  N.  Y.  Penal  Code, 
§§  246,  247. 

These  provisions,  although  cited  from  a  New  York  statute,  are 
quite  general  throughout  the  American  Union. 

§  574.  Miscellaneous  Authorities  on  the  Subject. — In  crim- 
inal prosecutions  for  libel,  the  reasonable  doctrine  is,  that  some 


CRIMINAL     LIBEL.  897 

connection  must  be  shown  between  the  publication  complained  of, 
and  the  publications  admitted  in  evidence  to  prove  actual  malice; 
but  if  these  tend  to  show  ill  will  toward  the  person  concerning 
whom  the  publication  complained  of  is  made,  and  are  of  such  a 
nature  as  to  indicate  a  persistent  disposition  of  hatred  or  ill  will 
toward  him,  or  if  they  appear  to  be  a  part  of  a  settled  purpose  to 
bring  him  into  public  hatred,  contempt  or  ridicule,  and  are  suffi- 
ciently near  in  time  to  afford  a  natural  inference  that  the  same 
state  of  mind  existed  when  the  publication  complained  of  was 
made,  they  arc  admissible,  although  they  are  subsequent  to  the 
publication  complained  of.  and  do  not  expressly  refer  to  it.  El- 
dridge  v.  State,  ^7  Fla.  162. 

The  publisher  of  a  libel  cannot  escape  liability  by  veiling  a 
calumny  under  artful  or  ambiguous  phrases,  or  by  indirectly 
charging  that  which  would  be  slanderous,  if  imputed  in  direct 
and  undisguised  language.  Sanderson  v.  Caldwell,  45  X.  Y.  401, 
6  Am.  Rep.  lo;>. 

"Where  the  terms  of  the  communication  are  indirect,  the  impu- 
tation of  an  act  committed  may  be  inferred,  where  the  defendant, 
expresses  a  suspicion  or  opinion,  or  institutes  a  comparison,  or 
delivers  the  words  as  matter  of  hearsay,  or  by  way  of  interrogation 
or  answer,  or  exclamation,  or  uses  disjunctive  or  adjective  words, 
or  speaks  ironically;  or,  in  general,  where  the  statement  virtually 
includes  or  assumes  the  commission  of  the  principal  act,  or  a  strong 
suspicion  of  it."     1  Stark.  Slander  &  Libel,  63. 

"But  where  the  name  of  the  plaintiff  is  not  stated,  or  where  a 
portion  only  of  his  name  is  stated,  then  if  the  application  of  the 
matter  to  the  plaintiff  is  denied,  the  burden  is  upon  him  to  show- 
its  application.  To  do  this  he  must  prove  facts  which  show  such 
application;  he  cannot  prove  the  application  directly,  by  asking  a 
witness  who  has  read  the  application  whom  he  understood  to  be 
intended."     Townshend,  Slander  &  Libel,  §  375  a. 

Section  724  of  Moore's  Criminal  Law.  contains  many  illustra- 
tions of  what  the  courts  construe  as  criminal  libel.  Obviously, 
any  evidence  calculated  to  establish  the  publication  of  any  of  the 
enumerated  acts  should  be  regarded  a-  relevant.  The  section 
referred  to,  is  as  follow.-:  "An  indictment  lie-  tor  publishing 
words  which  contain  that  sort  of  imputation  which  is  calculated 
to  vilify  a  man  and  bring  him  into  hatred,  contempt  or  ridicule, 
though  the  words  impute  no  punishable  crime."     Archb.  Crirn. 

r,7 


898  LAW    OF    EVIDENCE    IN    CRIMINAL    CASES. 

Pr.  &  PI.  204;  State  v.  Farley,  4  McCord,  L.  317;  Com.  v.  Chap- 
man, 13  Met.  68;  State  v.  Henderson,  1  Rich.  L.  179;  Rex  v. 
Pownell,  1  W.  Kel.  58;  ^eZe  v.  Southwick,  9  Johns.  214.  Thus 
to  write  that  a  man  is  a  swindler  or  a  hypocrite,  or  an  itchy  old 
toad  (2  Archb.  Crim.  Pr.  &  PI.  204;  Thorley  v.  Kerry,  4  Taunt. 
355)  or  a  drunkard  {Giles  v.  State,  6  Ga.  276)  or  a  cuckold  and 
a  story  {Giles  v.  State,  supra)  or  is  insane  {Rex  v.  Harvey,  2 
Barn.  &  C.  257;  Southworth  v.  Stevens,  10  Johns.  443)  or  that  a 
woman  has  been  guilty  of  fornication  {Reg.  v.  Langley,  3  Salk. 
190;  Rex  v.  Weltje,  2  Campb.  142;  and  see  State  v.  Avery,  7  Conn. 
267,  18  Am.  Dec.  105)  is  libelous  and  indictable.  Barbour^ 
Crim.  L.  232.  So  it  is  indictable  to  charge  a  man  with  a  gross 
want  of  feeling  ( Weaver  v.  Lloyd,  4  Dowl.  &  K.  230)  or  with 
wanting  discretion  (2  Archb.  Crim.  Pr.  &  PL  204)  or  with  hav- 
ing committed  any  crime.  "VVhart.  Am.  Crim.  L.  §  2527;  State  v. 
White,  29  K  C.  180;  Ilillhouse  v.  Dunning,  6  Conn.  391;  Walker 
v.  Winn,  8  Mass.  248.  It  is  libelous  to  write  concerning  a  man, 
'I  look  upon  him  as  a  rascal  and  have  watched  him  for  many 
years'  {Williams  v.  Karnes,  4  Humph.  9)  or  that  'he  is  thought 
no  more  of  than  a  thief  or  a  counterfeiter.'  Nelson  v.Musyrave, 
10  Mo.  648." 


CHAPTER  LXIY. 

CRIMINAL  CONSPIRACY. 

§  575.    Wind  Constitutes  Conspiracy. 

576.  One  Member  of  the  Confederacy  may  be  Convicted. 

577.  Proof  under  Indictment   Governed  by  same  Bales  as  in 

other  Cases. 

578.  Declarations-  of  Co-conspirators  Competent. 

a.  New  York  Decisions  in  Reference  to. 

b.  The  Wisconsin  Fade. 

c.  Views  of  Mr.  Roscoe. 

d.  Other  Sustaining  Authorities. 

579.  Defendant's  Quilt  must  be  Established  by  Evidence  of  his 

own  Arts. 

580.  Rule  as  to  Criminal  Intent. 

581.  When  Proof  of  Conspiracy  must  First  be  Shown. 

582.  What  man  be  Shown  in  Aggravation  of  the  Offense. 
5S3.  Rule  from  the  "Star  Route"  Case  as  to  Reasonable  Doubt. 

§  575.  AVhat  Constitutes  Conspiracy. — "If  two  or  more  per- 
sons conspire,  either 

"1.  To  commit  a  crime;  or 

"2.  Falsely  and  maliciously  to  indict  another  for  a  crime,  or  to 
procure  another  to  be  complained  of  or  arrested  for  a  crime;  or 

"3.  Falsely  to  institute  or  maintain  an  action  or  special  proceed- 
ing; or 

u4.  To  cheat  and  defraud  another  out  of  property,  by  any  means 
which  are  in  themselves  criminal,  or  which,  if  executed,  would 
amount  to  a  cheat,  or  to  obtain  money  or  any  other  property  by 
false  pretenses;  or 

"5.  To  prevent  another  from  exercising  a  lawful  trade  or  calling 
or  doing  any  other  lawful  act,  by  force,  threats,  intimidation,  or 
by  interfering  or  threatening  to  interfere  with  tools,  implements, 
or  property  belonging  to  or  used  by  another,  or  with  the  use  or 
employment  thereof;  or 

"6.  To  commit  any  act  injurious  to  the  public  health,  to  public 
morals,  or  to  trade  or  commerce,  or  for  the  perversion  or  obstruc- 
tion of  justice,  or  of  the  due  administration  of  the  laws. 

899 


900  LAW    OF    EVIDENCE    IN    CRIMINAL    CASES. 

"Each  of  them  is  guilty  of  a  misdemeanor."     K  Y.  Penal  Code, 
chap.  8,  §  168. 

There  are  strong  indications  that  originally  the  definition  of 
conspiracy  did  not  include  anything  more  than  confederacies  to 
charge  falsely  a  person  with  criminality.  Thus  Lord  Coke  de- 
scribes the  offense  as  "a  consultation  and  agreement  between  two 
or  more,  to  appeal  or  indict  an  innocent  person  falsely  and  mali- 
ciously, whom  accordingly  they  cause  to  be  indicted  or  appealed; 
and  afterwards  the  party  is  lawfully  acquitted  by  the  verdict  of 
twelve  men."  Blackstone  also  seems  to  regard  the  offense  to  be 
confined  to  a  malicious  accusation.  4  Bl.  Com.  136.  There  are 
several  cases  in  the  Year  Books  that  favor  the  same  limitation. 
And,  in  fact,  this  species  of  indictment  was  the  remedy  for  the 
same  wrong,  considered  in  its  criminal  aspect,  for  which  an  action 
for  a  malicious  prosecution  was  the  remedy,  considered  in  its  civil 
aspect.  It  is  much  in  this  light  that  the  subject  is  treated  in  Ja- 
cob's Law  Dictionary,  title  Conspiracy,  and  in  1  Hawk.  P.  0. 
chap.  72,  §  2.  But  the  doctrine  was  soon  expanded  beyond  its 
limit,  and,  among  other  cases,  it  was  held  that  although  no  indict- 
ment had  been  found,  or  even  though  no  complaint  had  been  laid 
before  a  magistrate,  and  the  only  object  appearing  was  to  destroy 
the  reputation  of  an  individual,  a  prosecution  for  conspiracy  could 
be  maintained.  This  was  the  ruling  by  Lord  Mansfield  in  the 
case  of  Bex  v.  Parsons,  1  W.  Bl.  392;  State  v.  Ridding,  41  K 
J.  L.  208. 

A  conspiracy  being  an  agreement  to  commit  a  criminal  or  un- 
lawful act,  the  criminality  must  exist  either  in  the  principal  act 
(the  end)  or  the  means  by  which  it  is  to  be  accomplished.  The 
information  must  therefore  set  out  directly,  and  not  by  way  of 
inference,  the  criminal  or  unlawful  act,  either  in  the  end  or  means. 
State  v.  Keach,  40  Yt.  113;  State  v.  Crowley,  41  Wis.  271,  22 
Am.  Bep.  719;  Com.  v.  Shedd,  7  Cush.  514;  State  v.  Jones,  13 
Iowa.  270;  1  Bennett  &  Heard,  Lead.  Crim.  Cas.  264  and  notes; 
( 'om.  v.  Eastman.,  1  Cush.  189,  is  Am.  Dec.  596;  State  v.  Roberts, 
34  Me.  320;  Statt  v.  Hewitt,  31  Me.  396;  Wark  v.  Willard,  15 
N.  II.  396;  Lambert  v.  People,  9  Cow.  578;  Hartman  v.  Com.  5 
Barr.  60;  United  States  v.  CruiMiank,  i>2  IT.  S.  542-558,  23  L. 
ed.  588-593;  1  Archb.  Crim.  Pr.  &  PI.  283,  note  1;  State  v. 
Wilson,  30  Conn.  504. 
At  first  to  bring  popular  leaders  to  the  block,  the  law  of  con- 


CR1MIMAL    CONSPIRACY.  901 

spiracy  has  in  later  times  been  invoked  to  suppress  combinations 
among  workmen  to  better  their  condition.  Many  of  the  most 
eminent  judges  in  this  country  have  looked  upon  it  with  disap- 
proval, and  expressed  a  determination  to  restrict  rather  than  extend 
it.  See  2  Stephen,  Dig.  Crim.  L.  227,  229;  State  v.  Reach,  40 
Vt.  113;  State  v.  Jones,  13  Iowa,  270;  Com.  v.  J  laid,  4  Met.  Ill, 
38  Am.  Dec.  346;  Com.  v.  Shall,  7  Cash.  514. 

§  576.  One  Member  of  the  Confederacy  may  be  Convicted. — 
While  it  takes  at  least  two  to  make  a  conspiracy,  it  is  not  neces- 
sary to  make  even  two  persons  defendants.  One  alone  may  be 
convicted  upon  proof  that  there  was  a  criminal  conspiracy  of 
which  he  was  a  member.  This  is  elementary  law.  2  Bishop,  Crim. 
Proc.  §  186;  3  Whart.  Am.  Crim.  L.(6thed.)§§  2340,  2344,  2346; 
State  v.  Adams,  1  Houst.  Crim.  ("as.  361;  Com.  v.  Irwin,  8  Phila. 
380.  The  doctrine  of  criminal  conspiracy  rests  upon  the  obvious 
proposition  that  the  power  of  many  for  mischief  against  the  one 
is  so  great  that  the  state  should  protect  the  one.  State  v.  Rowley, 
12  Conn.  112;  Reg.  v.  Duffield,  5  Cox,  C.  C.  432. 

§  577.  Proof  under  Indictment  Governed  by  same  Rules 
as  in  other  Cases. — An  indictment  for  a  conspiracy  stands  on 
precisely  the  same  footing  with  an  indictment  for  any  other  crime. 
There  is  no  special  virtue  in  the  term  "conspiracy,"  such  as  that 
it  should  establish  a  man's  guilt  by  evidence  of  the  acts  of  other 
men.  Wright,  Criminal  Conspiracies.  69,  71;  People  v.  Thorns, 
3  Park.  Crim.  Rep.  256;  Peoplt  v.  Courtney,  1  N.  Y.  Crim.  Rep. 
64;  Cuyler  v.  McCartney,  40  N.  Y.  221;  Ormsby  v.  People,  53  N. 
Y.  472;  Com.  v.  Work,  4:;  Phila.  Leg.  Int.  57;  Johnson  v.  Mil- 
ler, 63  Iowa,  529,  50  Am.  Rep.  758;  United  States  v..  Jones,  3 
Wash.  C.  C.  209;  Swan  v.  Com.  104  Pa.  218. 

§578.  Declarations  of  Co-conspirators  Competent.— Can 
declarations  of  one  of  the  alleged  co-conspirators,  made  subsequent 
to  the  abandonment  or  accomplishment  of  the  conspiracy  be  given 
in  evidence  as  against  a  co-conspirator?. 

The  general  rule  upon  this  subject  has  been  frequently  consid- 
ered by  the  New  York  court  of  appeals  in  some  quite  recent 
cases. 

a.  New  York  Decisions  in  Reference  to. — In  McCarney  v. 
People,  83  N.  V.  417,  38  Am.  Rep.  456,  in  discussing  this  ques- 
tion, the  court  says:  "It  is  a  rule  of  stringency  thai  there  must 
be  proof  of  a  conspiracy  before  the  declarations  of  a  co-conspira- 


902  LAW    OF    EVIDENCE    IN    CKIMINAL    CASES. 

tor  can  be  taken  against  one  on  trial  for  that  offense.  Yet  that 
rule  has  sometimes  been  made  to  yield  to  the  other  that  the  order 
of  proof  must  yield  to  the  discretion  of  the  court." 

In  the  case  of  People  v.  Davis,  56  "N.  Y.  103,  the  court  says : 
"The  general  rule  is,  that  when  sufficient  proof  of  a  conspiracy 
has  been  given  to  establish  the  fact  prima  facie  in  the  opinion  of 
the  judge,  the  acts  and  declarations  of  each  conspirator  in  the 
furtherance  of  the  common  object  are  competent  evidence  against 
all.  But  to  make  the  declaration  competent  it  must  have  been 
made  in  furtherance  of  the  prosecution  of  the  common  object,  or 
constitute  a  part  of  the  res  gestae  of  some  act  done  for  that  pur- 
pose. A  mere  relation  of  something  already  done  for  the  accom- 
plishment of  the  object,  of  the  conspirators  is  not  competent  evi- 
dence against  the  others.  We  have  already  seen  that  the  state 
mcnt  in  question  was  a  mere  narration  of   what  had  been  done." 

In  the  case  of  Stone  v.  ]'■ <>j>l<\  13  Hun,  205,  a  deposition  by 
one  of  the  alleged  co-conspirators,  the  deposition  having  been 
taken  some  two  or  three  months  after  the  transaction.  The  court 
said :  "The  deposition  of  Stone  was  incompetent  as  evidence 
against  Black.  The  evidence  was  given  long  after  the  plaintiffs 
in  error  had  ceased  to  act  in  furtherance  of  the  purposes  of  the 
conspiracy.  For  the  same  reasons  the  deposition  of  Black  was 
not  evidence  against  Stone." 

b.  The  Wisconsin  Rule. — Wisconsin  adopts  substantially  the 
same  rule  in  that  jurisdiction.  The  principle  is  well  established 
that  evidence  of  the  acts  and  declarations  of  co-conspirators,  if 
made  pending  the  conspiracy,  and  in  furtherance  of,  or  with 
reference  to,  the  common  design,  are  admissible  against  all,  and  it 
is  not  necessary  that  the  defendant  against  whom  the  act  or 
declaration  is  sought  to  be  introduced  should  have  been  a  con- 
spirator at  the  time  the  act  or  declaration  took  place.  If  he  sub- 
sequently joined  the  conspiracy,  he  ratified  the  previous  acts  of 
the  conspirators,  and  made  such  prior  acts  and  declarations  in 
reference  to  the  common  object  evidence  against  him.  Iloltz  v. 
State,  76  Wis.  99. 

But  it  is  indispensable  that  there  be  proof  sufficient  to  establish 
prima  facie  the  fact  that  a  conspiracy  existed  at  the  time  of  the 
act  or  declaration  sought  to  be  introduced.  Baker  v.  State,  80 
Wis.  416. 

c.  Views  of  Mr.  Roscoe. — In  Roscoe's  Criminal  Evidence  (5th 


CRIMINAL    CONSPIRACY.  903 

Am.  ed.)  page  414,  the  learned  author,  referring  to  the  Queen's 
Case,  2  Brod.  &  B.  310,  says :  "  The  following  rules  were  laid 
down  by  the  judges :  '  We  are  of  opinion,  that  on  the  prosecu- 
tion of  a  crime  to  be  proved  by  conspiracy,  general  evidence  of  an 
existing  conspiracy  may,  in  the  first  instance,  be  received  as  a 
preliminary  step  to  that  more  particular  evidence,  by  which  it  is 
to  be  shown  that  the  individual  defendants  were  guilty  partici- 
pators in  such  conspiracy.  This  is  often  necessary  to  render  the 
particular  evidence  intelligible,  and  to  show  the  true  meaning  and 
character  of  the  acts  of  the  individual  defendants,  and  on  that 
account,  we  presume,  it  is  permitted.  But  it  is  to  be  observed 
that,  in  such  cases,  the  general  nature  of  the  whole  evidence  in- 
tended to  be  adduced  is  previously  opened  to  the  court,  whereby 
the  judge  is  enabled  to  form  an  opinion  as  to  the  probability  of 
affecting  the  individual  defendants  by  particular  proof  applicable 
to  them,  and  connecting  them  with  general  evidence  of  the  alleged 
conspiracy;  and  if  upon  such  opening  it  should  appear  manifest 
that  no  particular  proof  sufficient  to  affect  the  defendants  is 
intended  to  be  adduced,  it  would  become  the  duty  of  the  judge 
to  stop  the  case  in  limine,  and  not  to  allow  the  general  evidence 
to  be  received,  which,  even  if  attended  with  no  other  bad  effect, 
such  as  exciting  an  unreasonable  prejudice,  would  certainly  be  a 
useless  waste  of  time." 

d.  Other  Sustaining  Authorities. — But  to  have  the  declara- 
tion competent  it  must  have  been  made  in  the  furtherence  of  the 
prosecution  of  the  common  object,  or  constitute  a  part  of  the  res 
gestae  of  some  act  done  for  that  purpose.  A  mere  relation  of 
something  already  done  for  the  accomplishment  of  the  object  of 
the  conspirator.'-  is  not  competent  evidence  against  the  others.  1 
Taylor,  Ev.  p.  542,  §  530. 

So,  on  the  trial  of  one  of  several  defendants  jointly  indicted 
for  an  offense,  the  declaration  of  a  co-defendant,  made  in  the 
absence  of  the  defendant  on  trial,  in  furtherance  of  the  common 
purpose,are  admissible  when  a  prima  facie  case  of  conspiracy  has 
been  made.  To  authorize  the  admission  of  such  evidence,  an 
express  averment  in  the  indictment,  of  the  fad  of  a  conspiracy,  is 
not  necessary.     Goins  v.  State,  46  Ohio  St.  457. 

The  rule  laid  down  by  Mr.  Easl  is  as  follows:  '"That  the  con- 
spiracy or  agreement  among  several  to  act  in  concert;  lor  a  par- 
ticular end  must  be  established  by  proof  and  before  any  evidence 


904  LAW    OF    EVIDENCE   IN    CRIMINAL    CASES. 

can  be  given  of  the  acts  of  any  person  not  in  the  presence  of  the 
prisoner;  and  this  must,  generally  speaking,  be  done  by  evidence 
of  the  party's  own  acts,  and  cannot  be  collected  from  the  acts  of 
others,  independent  of  his  own,  as  by  express  evidence  of  the  fact 
of  a  previous  conspiracy  together,  or  of  a  concurrent  knowledge 
and  approbation  of  each  other's  acts."  But  it  is  observed  by  Mr. 
Starkie  that  in  some  peculiar  instances  in  which  it  would  be  diffi- 
cult to  establish  the  defendant's  privity  without  first  proving  the 
existence  of  a  conspiracy,  a  deviation  has  been  made  from  the 
general  rule,  and  evidence  of  the  acts  and  conduct  of  others  has 
been  admitted  to  prove  the  existence  of  a  conspiracy  previous  to 
the  proof  of  the  defendant's  privity.  In  the  case  of  Place  v. 
Minster,  65  JM.  Y.  105,  Mr.  Commissioner  Dwight,  in  speaking 
upon  this  subject,  says :  "  Nothing  can  be  better  settled  than  the 
main  proposition  that  the  declarations  of  one  alleged  conspirator 
cannot  be  admitted  against  his  associates  unless  the  conspiracy  be 
established.  There  is,  however,  no  rule  that  the  conspiracy  must 
be  established  first  in  the  order  of  time.  Convenience  may 
require  that  the  declaration  be  admitted  provisionally,  subject  to 
subsequent  proof  of  the  conspiracy.  If  that  is  not  offered,  it 
should  be  stricken  out.  If  this  discretion  is  abused,  there  will  be 
error." 

§  579.  Defendant's  Guilt  must  foe  Established  by  Evidence 
of  his  own  Acts. — It  is  necessary  that  the  defendant's  guilt, 
either  as  principal  or  accessory,  should  be  finally  established  by 
evidence  of  his  own  acts.  Wright,  Criminal  Conspiracies,  69,  71; 
People  v.  Thomas,  3  Park.  Crim.  Rep.  256;  People  v.  Courtney, 
28  Hun,  589;  Cuyler  v.  McCartney,  10  K  Y.  221;  Ormsby  v. 
People,  53  K  Y.  172;  ( 'om.  v.  Work,  13  Phila.  Legal  Int.  57; 
Johnson  v.  Miller,  63  Iowa,  52'. »;  United  States  v.  Jones,  3  Wash. 
C.  C.  209;  Swan  v.  Com.  104  Pa.  218;  Stephen,  Dig.  Crim.  L. 
art.  39;  Peg.  v.  Berry,4:  Fost.  &  F.  389;  State  v.  Cox,  29  Mo.  175; 
Clem  v.  State,  33  Ind.  118;  Connaughty  v.  State,  1  Wis.  159,  60 
Am.  Dec  370. 

§  580.  Rule  as  to  Criminal  Intent. — To  make  an  agreement 
between  two  or  more  parties  a  criminal  conspiracy,  it  is  not 
enough  that  the  act  is  prohibited  by  statute,  but  the  agreement 
must  have  been  entered  into  with  a  criminal  intent.  Peopjle  v. 
Potoell,  63  jST.  Y.  88.  But  to  constitute  a  criminal  intent  it  is  not 
necessary  to  show  an  intent  to  violate  the  law;    the  question  isy 


CRIMINAL   CONSPIRACY.  905 

did  the  accused  intend  to  do  the  thing  he  did  do,  and  was  that 
thing  in  violation  of  law.  People  v.  Grim,  3  N.  Y.  Crim.  Rep. 
317;  HaUted  v.  State,  41  N.  J.  L.  552,  32  Am.  Rep.  217;  Fox  v. 
State,  3  Tex.  App.  329,  30  Am.  Rep.  141;  Reg.  v.  Prince,  13 
Moak,  Eng.  Rep.  385. 

§  581.  When  Proof  ot  Conspiracy  must  First  be  Shown. — 
The  proof  of  conspiracy  which  will  authorize  the  introduction  of 
evidence  as  to  the  acts  and  declarations  of  the  co-conspirators  may 
be  such  proof  only  as  is  sufficient,  in  the  opinion  of  the  trial  judge, 
to  establish  prima  facie  the  fact  of  conspiracy  between  the  parties, 
or  proper  to  be  laid  before  the  jury  as  tending  to  establish  such 
fact. 

"Sometimes,  for  the  sake  of  convenience,  the  acts  or  declarations 
of  one  are  admitted  in  evidence  before  sufficient  proof  is  given  of 
the  conspiracy;  the  prosecutor  undertaking  to  furnish  such  proof 
in  a  subsequent  stage  of  the  cause."     1  Greenl.  Ev.  §  111. 

The  rules  that  the  conspiracy  must  be  first  established  prima 
facie  before  the  acts  and  declarations  of  one  conspirator  can  be 
received  in  evidence  against  another,  cannot  well  be  enforced 
"•where  the  proof  of  the  conspiracy  depends  upon  a  vast  amount 
of  circumstantial  evidence,  a  vast  number  of  isolated  and  inde- 
pendent facts;  and,  in  any  case,  where  such  acts  and  declarations 
are  introduced  in  evidence  and  the  whole  of  the  evidence  intro- 
duced on  the  trial,  taken  together,  shows  that  such  a  conspiracy 
actually  existed, — it  will  be  considered  immaterial  whether  the 
conspiracy  was  established  before  or  after  the  introduction  of  such 
acts  and  declarations."     State  v.  Winner,  17  Kan.  298. 

In  many  important  cases  evidence  has  been  given  of  a  general 
conspiracy,  before  any  proof  of  the  particular  part  which  the 
accused  parties  have  taken.  Roscoe,  Crim.  Ev.  (7th  ed.)  415.  "  In 
some  peculiar  instances,  in  which  it  would  be  difficult  to  establish 
the  defendant's  privity  without  first  proving  the  existence  of  a 
conspiracy,  a  deviation  lias  been  made  from  the  general  rule,  and 
evidence  of  the  acts  and  conduct  of  others  has  been  admitted  to 
prove  the  existence  of  a.  conspiracy  previous  to  the  proof  of  the 
defendant's  privity."      Roscoe,  Crim.  Ev.  411. 

§  582.  What  may  be  Shown  in  Aggravation  of  the  Offense. 
— In  State  v.  Mayherry,  48  Me.  21s,  it  was  held  that  if  the  con- 
spirators carry  out  the  object  of  conspiracy,  that  fact  may  he 
alleged   in   aggravation  of   the  offense,  and   given    in   evidence   to 


906 


LAW    OF    EVIDENCE    IN    OIUMINAL    CASES. 


prove  the  conspiracy.  Though  the  offense  of  conspiracy,  even 
where  the  overt  act  is  committed,  is  complete  before  the  commis- 
sion of  the  overt  act,  in  the  sense  that  nothing  more  is  necessary 
to  constitute  the  crime,  yet  the  conspiracy  must  be  deemed  to 
continue  during  the  commission  of  the  overt  act.  Com.  v.  Cor- 
Ues,  3  Brewst.  575;  State  v.  Ormiston,  66  Iowa,  143. 

Mere  knowledge  of  a  conspiracy  without  actual  participation  in 
it  is  insufficient  to  convict.  Indeed,  such  evidence  is  inadmissi- 
ble. People  v.  Evans,  90  111.  384.  But  presence  at  a  meeting  of 
the  conspirators  may  be  shown  as  evidence  of  participation.  Spies 
v.  People,  122  111.  1,  3  Am.  St.  Rep.  320. 

§  5S3.  Rule  from  the  "Star  Route"  Case  as  to  Reasonable 
Doubt. — "All  crimes  are  generally  more  or  less  difficult  to  estab- 
lish; but  conspiracies  are  peculiarly  the  product  of  darkness. 
Conspiracies  are  very  seldom  reduced  to  writing.  They  are  entered 
into  sometimes  in  a  very  informal  way;  generally,  in  fact,  in  an 
informal  way.  The  parties  may  not  come  together  at  all.  They 
may  be  in  different  parts  of  the  country.  But  if,  by  any  means, 
by  telegraph  or  letter  or  by  dumb  show,  if  any  of  them  are  dumb, 
if  by  any  means  whatever,  they  come  to  a  mutual  understanding 
for  the  purpose  of  committing  a  crime  against  the  government 
that  is  a  conspiracy,  provided  it  be  followed  by  an  overt  act.  It 
is  said  that  you  ought  not  to  convict  men  on  circumstantial  evi- 
dence unless  it  be  of  the  clearest  and  most  absolutely  convincing 
character.  The  rule  in  regard  to  conspiracy,  as  in  regard  to  all 
crimes,  is  that  you  shall  be  satisfied  in  your  own  mind,  beyond  a 
reasonable  doubt,  of  the  guilt  of  the  defendants.  I  do  not  know 
that  I  am  capable  of  making  that  any  clearer.  The  books  contain 
discourses  on  the  subject,  amplifications  of  that  idea,  but  after  all 
it  comes  back  to  the  point  that  every  man  on  the  jury  should  be 
satisfied  of  the  guilt  of  the  defendants  beyond  a  reasonable  doubt. 
The  reasonable  doubt  ought  to  be  a  doubt  which  arises  out  of  the 
evidence  in  the  case.  It  ought  not  to  be  conjecture.  It  ought  to 
be  a  doubt  supported  by  a  reason.  There  is  a  difficulty,  though. 
You  are  twelve  men  on  the  jury.  Your  organs  are  different,  your 
mental  capacities  are  different,  and  your  powers  of  observation 
are  different.  What  may  seem  to  be  a  reasonable  doubt  to  one 
may  not  seem  so  to  another.  But  that  is  a  difficulty  which  can- 
not be  avoided  as  long  as  twelve  men  have  to  pass  upon  the  ques- 
tion of  the  liberty  of  the  citizen.     Each  man  ought  to  be  satisfied 


CRIMINAL    CONSPIRACY.  907 

in  that  sense.  The  jury  ought  to  be  careful  to  see  that  the  doubt 
arises  out  of  the  evidence  and  is  not  a  mere  conjecture.  A  man 
is  seen  upon  the  street  to  strike  another  upon  the  head  and  fell 
him  to  the  ground  by  a  blow  with  a  bludgeon.  The  stricken 
■man's  skull  is  cracked  and  he  dies.  It  is  possible  that  he  might 
have  had  a  convenient  apoplectic  fit  and  died  from  it;  but  if 
there  is  no  evidence  of  apoplexy  and  no  evidence  that  that  caused 
his  death  and  the  blow  was  sufficient  to  cause  his  death  it  would 
be  folly,  weakness,  and  an  unreasonable  ground  that  the  man 
might  have  died  of  apoplexy."  United  States  v.  Darsey,  3 
Star  Route  Trials  (Government  ed.)  31S3. 


CHAPTER  LXY. 

EVIDENCE  IN  TRIALS  BY  COURTS-MARTIAL. 

§  584.  Courts-martial  Entertain  Limited  Jurisdiction. 

5S5.  Rules  of  Evidence  Governing. 

586.  Arbitrary  Nature  of  the  Rules. 

587.  Justified  only  by  Military  Necessity. 
5S8.  Review  of  tlte  Celebrated  Milligan  Case. 
589.  Extract  from  De  Hart's  Military  Laiv. 
£90.  Power  of  these  Courts  to  Originate  Evidence. 

591.  Functions  of  the  Judge  Advocate. 

592.  Evidence  in  Support  of  the  Averments  of  the  Charge, 

593.  Liberal  Rules  as  to  Defensive  Evidence. 

594.  Rule  as  to  Counsel. 

595.  Recalling  Witnesses. 

596.  Evidence  of  the  Record  on  Appeal. 

597.  Partial  Review  of  Miscellaneous  Authorities. 

§  584.  Courts-martial  Entertain   Limited  Jurisdiction. — 

Courts-martial  and  delinquency  courts  are  tribunals  of  special  and 
limited  powers,  having  jurisdiction  only  of  offenses  against  mili- 
tary discipline  committed  by  persons  belonging  to  the  particular 
branch  of  the  military  organization  for  which  such  courts  are- 
organized. 

The  military  courts  are  courts  of  special,  limited — not  general 
— jurisdiction.  While  the  civil  courts  cannot  interfere  with  the 
military  courts,  when  acting  within  their  jurisdiction,  it  is  the 
province  of  the  former  to  confine  the  latter  strictly  to  the  exer- 
cise of  their  special  jurisdiction.  Smith  v.  Whitney,  116  U.  S. 
167,  29  L.  ed.  601.  In  Re  Bogart,  2  Sawy.  396,  and  in  Ex  parte 
Reed,  100  U.  S.  21,  25  L.  ed.  538,  the  court  inquired  into  the 
fact  whether  the  petitioners  were  in  the  naval  service,  at  the  time 
when  the  alleged  offense  was  committed,  and,  on  finding  that  they 
were,  held,  that  the  courts  were  proceeding  within  their  appropri- 
ate jurisdiction,  and  refused  on  that  ground  to  interfere.  Re 
Zimmerman,  30  Fed.  Rep.  176. 

Military  law  proper  is  that  branch  of  the  public  law  which  is 
enacted  or  ordained  for  the  government  exclusively  of  the  mili- 

908 


EVIDENCE    IN    TRIALS    BY    COURTS-MARTIAL.  909 

tary  state,  and  is  operative  equally  in  peace  and  in  war.  1 
Winthrop,  Military  Law,  4. 

Military  law  is  that  portion  of  the  law  of  the  land  designed  for 
the  government  of  a  particular  class  of  persons,  and  administered 
by  special  tribunals.  It  is  superinduced  to  the  ordinary  law  for 
the  purpose  of  regulating  the  citizen  in  his  character  of  soldier; 
and  although  military  offenses  are  not  cognizable  under  the  com- 
mon law  jurisdiction  of  the  United  States,  yet  the  articles  of  war 
clearly  recognize  the  superiority  of  the  civil  over  the  military 
authority.     Benet,  Military  Laws  &  Courts-martial,  1. 

§585.  Rules  of  Evidence  Governing. — While  Congress  has 
authorized  courts-martial,  established  their  composition,  jurisdic- 
tion, and  rules  of  procedure,  it  has  never  prescribed  the  rules  of 
evidence  which  shall  govern  their  proceedings.  Courts-martial, 
being  courts  alone  of  criminal  jurisdiction,  must  therefore  adhere 
to  the  rules  of  evidence  of  the  United  States  criminal  courts.  2 
Opinions  Atty.  Gen.  344;  3  Greenl.  Ev.  §  469. 

These  rules  are  the  common  law  rules  of  evidence  in  criminal 
cases,  except  where  Congress  has  prescribed  otherwise.  The  only 
ether  exceptions  which  are  permitted  are  those  which  are  of  nec- 
essity created  by  the  nature  of  the  service,  and  by  the  constitution 
of  the  court,  and  its  course  of  proceeding.  3  Greenl.  Ev.  §  47»i. 
cited  in  Ives,  Military  Law,  300. 

§  586.  Arbitrary  Nature  of  the  Rules.— The  Duke  of  Wel- 
lington said,  in  the  House  of  Lords,  on  the  1st  of  April,  1851,  in 
reference  to  the  Ceylon  rebellion  of  1849.  "that  martial  law  was 
neither  more  nor  less  than  the  will  of  the  general  who  commands 
fhe  army:  in  fact,  martial  law  is  no  law  at  all." 

A  military  commission  derives  its  powers  and  authority  wholly 
from  martial  law;  and  by  that  law  and  military  authority  only  are 
its  proceeding.-  to  be  judged  or  reviewed.  Dynes  v.  TlooVi  ,\  (!1 
U.  S.  20  How.  78,  15  L.  ed.  843;  Ex  parti  Fallandigham,  68  U. 
S.  1  Wall.  243,  17  L.  ed.  589. 

Martial  law  is  the  will  of  the;  commanding  officer  of  an  armed 
force  or  of  a  geographical  military  department,  expressed  in  time 
<>f  war  within  the  limit.-  of  hi.-  military  jurisdiction,  as  necessity 
demands  and  prudence  dictates,  restrained  or  enlarged  by  the 
orders  of  his  military  chief  or  supreme  executive  ruler.  Speech  of 
the  Duke  of   Wellington,  95  Eansard,  Pari.  Debates  (3d  se] 


910  LAW    OF    EVIDENCE    IN    CRIMINAL    CASES. 

80,  8  Opinions  Atty.  Gen.  367;  Examination  of  Major  Andre 
before  Board  of  Officers,  18  Colonial  Pamph. 

Martial  law  and  its  tribunals  have  thus  come  to  be  recognized 
in  the  military  operations  of  all  civilized  warfare.  Washington,. 
in  the  Revolutionary  War,  had  repeated  recourse  to  military  com- 
missions. General  Scott  resorted  to  them  as  instruments  with 
which  to  govern  the  people  of  Mexico  within  his  lines.  They  are 
familiarly  recognized  in  express  terms  by  the  acts  of  Congress  of 
July  17,  1802,  chap.  201,  §  5;  Mar.  18,  1863,  chap.  75,  §  36;. 
Resolution  No.  18,  Mar.  11,  1862;  and  their  jurisdiction  over  cer- 
tain offenses  is  also  recognized  by  these  acts. 

1  Blackstone's  Commentaries,  pp.  413,  414,  says:  "For  martial 
law,  which  is  built  upon  no  settled  principles,  but  is  entirely  arbi- 
trary in  its  decisions  is,  as  Sir  Matthew  Hale  observes,  in  truth 
and  reality  no  law,  but  something  indulged  rather  than  allowed  as 
a  law." 

Lord  Loughborough,  delivering  the  judgment  of  the  King's 
Bench  in  Grant  v.  Gould,  2  H.  Bl.  69,  says: 

"Martial  law,  such  as  it  is  described  by  Hale,  and  such  also,  as 
it  is  marked  by  Mr.  Justice  Blackstone,  does  not  exist  in  England 
at  all.  Where  martial  law  is  established  and  prevails  in  any  coun- 
try, it  is  of  a  totally  different  nature  from  which  is  inaccurately 
called  martial  law,  merely  because  the  decision  is  by  a  court- 
martial,  but  which  bears  no  affinity  to  that  which  was  formerly 
attempted  to  be  exercised  in  this  kingdom,  which  was  contrary 
to  the  constitution  and  which  has  been  for  a  century  totally 
exploded." 

§  587.  Justified  only  by  Military  Necessity.— The  military 
necessity,  which  justifies  or  excuses  the  exercise  of  martial  law 
over  persons  not  in  the  military  service,  must  be  an  actual,  not  a 
fictitious  necessity.  Martial  law,  which  punishes  without  legal 
trial,  can  only  be  enforced  at  a  place  where  war  is  actually  blaz- 
ing, where  the  courts  are  driven  out  and  a  legal  trial  physically 
impossible.  It  cannot  be  continued  an  hour  after  this  state  of 
things  ceases,  nor  can  it  be  tolerated  at  one  place  because  the 
courts  are  broken  up  by  war  or  insurrection  in  another  place. 
Our  views  on  this  point  are  more  fully  expressed  by  Sir  James 
Mackintosh,  in  his  great  speech  on  the  case  of  Rev.  Jno.  Smith,, 
delivered  in  the  House  of  Commons  June  1st,  1824.  3  Mackin- 
tosh's Works,  726,  734;  Hale,  Hist.  Com.  L.  41-43;  3  Hall,  Const. 


EVIDENCE    IN    TRIALS    BY    COURTS-MARTIAL.  911 

Hist,  of  Eng.  350;  1  Hall,  Const.  Hist,  of  Eng.  328;  1  Bl.  Com.. 
413;  1  DeLolme,  Eng.  Const.  265,  266;  Lieut  Frey's  Case,  men- 
tioned in  2  DeLolme,  Eng.  Const.  982,  and  in  MeArthur,  Military 
Law;  see  also  London  Gazette,  1746,  in  Congressional  Library; 
Steven,  Martial  Law  Com.  561;  Hough,  Military  Law,  511;  Wel- 
lington's Opinion  of  Martial  Law,  as  expressed  in  the  House  of 
Lords  in  1851,  Hough,  Military  Law,  515;  Hickman,  Naval  Court- 
Martial,  85;  O'Brien,  Am.  Military  Law,  222,  225,  226;  3  Benton, 
Abr.  Debates,  504;  Debate  on  Jefferson's  Application  for  Suspen- 
sion of  habeas  corpus,  Mackintosh's  speech  on  Smith's  Case, 
Mackintosh's  Works,  726;  Brougham's  Speech  on  same  case. 
Brougham's  Speeches.  See  Review  of  Smith's  Case,  40  Edin- 
burgh Review;  Earl  of  Lancaster's  Case,  Attainder  Reversed,  1 
Edw.  III.;  Hale,  P.  C.  499,  500;  Petition  of  Right,  5  Statutes  oj 
the  Realm,  424;  Goeffrey's  Case,  in  France  Court  of  Cassation. 
June  29,  1832;  24  Journal  Du  Palais.  121  8;  Lord  McGuire's 
Case,  4  How.  St.  Tr.  654;  Prynn's  Argument  for  Prosecution, 
690;  Ex  parte  Milligan,  71  V.  S.  4  Wall.  2.  18  L.  ed.  281. 

§  588.  Review  of  the  Celebrated  Milligan  Case. — "JNo  graver 
question  was  ever  considered  by  this  court,  nor  one  which  more 
nearly  concerns  the  rights  of  the  whole  people,  for  it  is  the  birth- 
right of  every  American  citizen  when  charged  with  crime,  to  be 
tried  and  punished  according  to  law.  The  power  of  punishment 
is  alone  through  the  means  which  the  laws  have  provided  for  that 
purpose,  and  if  they  are  ineffectual,  there  is  an  immunity  from 
punishment,  no  matter  how  great  an  offender  the  individual  may 
be,  or  how  much  his  crimes  may  have  shocked  the  sense  of  justice 
of  the  country,  or  endangered  its  safety.  By  the  protection  oi 
the  law  human  rights  are  secured;  withdraw  that  protection,  and 
they  are  at  the  mercy  of  wicked  rulers,  or  the  clamor  of  an  excited 
people.  If  there  was  law  to  justify  this  military  trial,  it  is  not 
our  province  to  interfere;  if  there  was  not,  it  is  our  duty  to  de- 
clare the  nullity  of  the  whole  proceedings.  The  decision  of  this 
question  does  not  depend  on  argument  or  judicial  precedents, 
numerous  and  highly  illustrative  a,-  they  are.  These  precedents 
inform  us  of  the  extent  of  the  struggle  to  preserve  liberty  and  to 
relieve  those  in  civil  life  from  military  trials.  The  founders  of 
our  government  were  familiar  with  the  history  of  that  struggle, 
and  secured  in  a  written  constitution  every  right  which  the  people 
had  wrested  from  power  during  a  contest  of  ages.      By  that  Con- 


912  LAW    OF    EVIDENCE    IN    CRIMINAL    CASES. 

stitution  and  the  laws  authorized  by  it,  this  question  must  be 
determined.  The  provisions  of  that  instrument  on  the  adminis- 
tration of  criminal  justice  are  too  plain  and  direct  to  leave  room 
for  misconstruction  or  doubt  of  their  true  meaning.  Those  appli- 
cable to  this  case  are  found  in  that  clause  of  the  original  Consti- 
tution  which  says,  that  'the  trial  of  all  crimes,  except  in  case  of 
impeachment,  shall  be  by  jury;'  and  in  the  fourth,  fifth  and  sixth 
articles  of  the  amendments.  The  fourth  proclaims  the  right  to 
be  secure  in  person  and  effects  against  unreasonable  search  and 
seizure,  and  directs  that  a  judicial  warrant  shall  not  issue  "without 
proof  of  probable  cause  supported  by  oath  or  affirmation."  The 
fifth  declares  "that  no  person  shall  be  held  to  answer  for  a  capital 
or  otherwise  infamous  crime  unless  on  presentment  by  a  grand 
jury,  except  in  cases  arising  in  the  land  or  naval  forces,  or  in  the 
militia,  when  in  actual  service  in  time  of  war  or  public  danger, 
nor  be  deprived  of  life,  liberty  or  property,  without  due  process 
of  law."  And  the  sixth  guarantees  the  right  of  trial  by  jury,  in 
such  manner  and  with  such  regulations  that  with  upright  judges, 
impartial  juries,  and  an  able  bar  the  innocent  will  be  saved  and 
the  guilty  punished.  It  is  in  these  words:  "In  all  criminal 
prosecutions  the  accused  shall  enjoy  the  right  to  a  speedy  and 
public  trial  by  an  impartial  jury  of  the  state  and  district  wherein 
the  crime  shall  have  been  committed,  which  district  shall  have 
been  previously  ascertained  by  law,  and  to  be  informed  of  the 
nature  and  cause  of  the  accusation;  to  be  confronted  with  the 
witnesses  against  him,  to  have  compulsory  process  for  obtaining 
witiu'ssL'S  in  his  favor,  and  to  have  the  assistance  of  counsel  for 
his  defense."  These  securities  for  personal  liberty  thus  embodied, 
were  such  as  wisdom  and  experience  had  demonstrated  to  be 
necessary  for  the  protection  of  those  accused  of  crime.  And  so 
strong  was  the  sense  of  the  country  of  their  importance,  and  so 
jealous  were  the  people,  that  these  rights,  highly  prized,  might  be 
denied  them  by  implication  that  when  the  original  Constitution 
was  proposed  for  adoption  it  encountered  severe  opposition;  and, 
but  for  the  belief  that  it  would  be  so  amended  as  to  embrace 
them,  it  would  never  have  been  ratified."  Ex  parte  Milligan,  71 
U.  S.  4  Wall.  120,  18  L.  ed.  295. 

The  right  of  trial  by  jury  is  preserved  to  every  one  accused  of 
crime,  who  is  not  attached  to  the  army,  or  navy,  or  militia  in 
actual  service.     Martial  rule  can  never  exist  where  the  courts  are 


EVIDENCE    IN    TRIALS    BY    COURTS-MARTIAL.  913 

open,  and  in  the  proper  and  unobstructed  exercise  of  their  juris- 
diction. It  is  also  confined  to  the  locality  of  actual  war.  Ex 
parte  MilUgan,  71  U.  S.  4  Wall.  2,  18  L.  ed.  281. 

The  case  last  above  cited  must  ever  be  regarded  as  anions:  the 
celebrated  cases  expository  of  this  entire  subject.  The  prosecu- 
tion was  represented  by  James  Speed  the  Attorney  General, 
Henry  Stanbury  subsequent  in  the  same  position,  and  by  Benjamin 
F.  Butler.  The  defense  was  entrusted  to  Jeremiah  S.  Black,  J. 
E.  McDonald,  James  A.  Garfield  and  David  W.  Field.  Chief 
Justice  Chase  announced  the  order  of  the  court,  and  Mr.  Justice 
Davis  delivered  the  opinion,  followed  by  a  more  elaborate  one 
from  the  Chief  Justice.  Justices  Nelson,  Grier  and  Clifford  dis- 
sented. Swayne,  Wayne  and  Miller  concurred.  Taken  together 
these  two  opinions  together  with  the  briefs  of  counsel  afford  very 
instructive  reading  upon  the  somewhat  obscured  topic  of  the  law. 

§  589.  Extract  from  De  Hart's  Military  Law.— "The  sub- 
ject of  evidence,  which  presents  so  wide  a  field,  to  be  scrutinized 
by  those  who  are  engaged  in  the  administration  of  justice,  in  the 
ordinary  or  civil  walks  of  life,  is  of  comparatively  limited  extent 
as  applied  for  the  purposes  of  military  investigation;  and  this  be- 
cause in  the  latter  cases  there  is  a  greater  similarity  in  the  ques- 
tions to  be  considered,  arising  from  the  absence  of  those  diverse 
conditions,  and  complicated  circumstances  both  of  law  and  facts, 
which  distinguish  judicial  proceedings  in  the  ordinary  courts  of 
justice. 

"It  is  unnecessary  therefore,  that  military  persons  should  be 
possessed  of  a  knowledge  of  those  niceties  and  distinctions,  in 
regard  to  evidence,  which  is  so  essential  to  the  legal  practitioner 
in  his  daily  business;  but  as  the  rules  which  govern  courts-martial 
are  the  same  as  those  obtaining  in  the  criminal  courts  of  the  land, 
it  is  of  essential  importance  that  military  men  should  understand 
the  general  principles  of  the  law  of  evidence. 

"These  are  gathered  from  the  past,  in  the  gradual  experience  of 
able  men,  whose  live*  have  been  devoted  to  the  science  of  law, 
and  been  conformed  by  time.  They  are  founded  on  tin;  'obser- 
vations of  human  conduct,  on  common  life,  and  living  manners,' 
and  are -acknowledged  as  'rules  of  law  because  they  are  just  and 
reasonable;'  and  are  not,  therefore,  to  be  regarded  as  mere  arbi- 
trary dicta,  upon  the  observance  of  which  a  formal  uniformity 
may  be  preserved,  or  the  convenience  of  the  court  insured,  but  as 
58 


914  LAW    OF    EVIDENCE    IN    CRIMINAL    CASES. 

great  moral  truths  winch  govern  or  influence  the  acts  and  opinions. 
of  men,  and  are  essential  to  be  known  and  defined  for  the  safety 
of  society."     De  Hart,  Military  Law,  chap.  16,  p.  334. 

§  590.  Power  of  these  Courts  to  Originate  Evidence.— 

Some  question  has  arisen  as  to  the  power  of  a  court-martial  to 
originate  evidence;  that  is,  to  call  witnesses  not  called  by  either 
party.  "While  this  places  a  court-martial  somewhat  in  the  light  of 
a  prosecutor,  yet  there  may  be  points  which  the  court  desires  to- 
have  cleared  up,  and  the  Judge  Advocate  General  says  that  it  is 
authorized  to  call  before  it  to  give  testimony,  witnesses  whom 
neither  the  prosecution  nor  the  defense  have  summoned,  and  this 
even  after  both  have  closed  their  case.     Ives,  Military  Law,  133. 

§  591.  Functions  of  the  Judge  Advocate. — "The  judge  advo- 
cate is  the  advising  and  prosecuting  officer  in  military  law  or  be- 
fore a  court-martial. 

"He  may  be  the  judge  advocate  general,  or  a  deputy  judge  ad- 
vocate. In  conducting  a  trial,  he  represents  the  United  States, 
the  accused,  and  the  court.  The  officer  highest  in  rank  present 
is  president  of  the  court. 

"The  officer  who  may  order  a  court-martial  is  competent  to  ap- 
point the  judge  advocate;  the  appointment  for  a  regimental  or  a 
irarrison  court-martial  is  made  in  the  same  manner  as  for  a  gen- 
eral  court-martial. 

"Without  the  order  of  the  court,  he  may  summon  necessary  wit- 
nesses and  he  may  compel  the  attendance  of  any  person  not  in  the 
military  service.  When  it  is  possible,  he  should  send  subpoenas 
through  regular  military  channels.  He  also  conducts  the  exami- 
nation of  witnesses,  observing  the  established  rules  of  evidence. 

"By  order  of  the  court  he  may  be  assisted  by  a  clerk,  preference 
being  given  by  a  soldier. 

"At  the  close  of  the  trial,  without  delay,  he  should  transmit  the 
proceedings  to  the  officer  having  authority  to  confirm  the  sentence."' 
Anderson,  Law  Diet,  title  Judge  Advocate^  citing  Regulations  of 
the  Army  of  the  United  States,  88,  89,  92  (1SS1). 

§  592.  Evidence  in  Support  of  the  Averments  of  the 
Charge. — After  all  preliminary  matters  are  disposed  of  and  the 
case  is  at  issue,  the  judge  advocate  opens  for  the  prosecution,  and 
introduces  evidence  to  support  the  averments  of  the  charge.  The 
defendant  then  presents  his  witnesses,  and  the  trial  is  proceeded, 
with  in  the  same  manner  as  in  civil  tribunals. 


EVIDENCE    IN    TRIALS    BY    COURTS-MARTIAL.  915 

„  The  rules  of  the  military  law  with  reference  to  evidence  are 
founded  upon  the  civil  and  distinguished  from  military  law;  but 
the  military  courts  are  deficient  in  known  and  accessible  prece- 
dents available  to  decide  doubtful  questions.  In  Whittaker's 
Case,  Attorney  General  Brewster  said :  "As  no  rules  of  evidence 
are  specially  presented  by  Congress  for  the  observance  of  courts- 
martial,  it  must  be  deemed  that  such  courts  are  contemplated  to 
be  governed,  in  general,  by  the  same  rules  of  evidence  which 
govern  the  ordinary  courts  of  criminal  jurisprudence.  These 
rules  are  supplied  by  the  common  law,  excepting,  of  course? 
where  otherwise  provided  by  statute,  in  which  case  the  latter  pre- 
vails/' See  also  Grant  v.  Gould,  2  EL  Bl.  69;  Am.  &  Eng.  Enc. 
Law,  title  MUita/ry  Law. 

§  593.  Liberal  Rules  as  to  Defensive  Evidence. — The  fol- 
lowing remarks  from  the  "War  Department  in  reference  to  the 
statement  of  an  accused,  should  be  borne  in  mind  by  the  mem- 
bers of  courts-martial,  and  by  parties  being  tried  :  "Great  latitude 
is  undoubtedly  always  allowed  to  an  accused  in  offering  his  de- 
fense. Any  argument  fairly  deducible  from  the  evidence  tend- 
ing to  show  malice  in  the  prosecution,  or  to  impeach  the  credit  of 
witnesses  may  be  advanced;  but  this  privilege  ought  not  to  be 
abused,  so  as  to  make  an  argument  the  vehicle  of  satire  and  per- 
sonal ridicule,  and  convert  a  means  of  defense  into  a  weapon  of 
attack." 

"Courts-martial  had  much  better  err  on  the  side  of  liberality 
towards  a  prisoner  than  by  endeavoring  to  solve  nice  and  techni- 
cal refinements  of  the  law  of  evidence,  assume  the  risk  of  injuri- 
ously denying  him  proper  latitude  for  defense."  Ives,  Military 
Law,  134." 

§  594.  Rule  as  to  Counsel. — Persons  having  an  interest  in 
the  trial  cannot  insist  upon  being  admitted  to  act  as  counsel,  or 
have  others  do  this  in  their  behalf.  This  was  exemplified  in  the 
trial  of  Commander  Mackenzie,  U.  S.  N.  1S43,  who  was  charged 
with  "murder  on  board  a  U.  S.  vessel  on  the  high  seas."  On  the 
third  day  of  the  trial  the  judge  advocate  presented  a  paper  signed 
by  two  eminent  legal  gentlemen,  stating  that  "they  had  been  em- 
ployed by  the  relative,-  of  Midshipman  Philip  Spencer, one  of  the 
persons  for  the  murder  of  whom  Commander  Mackenzie  was  then 
upon  trial,  to  attend  the  trial  and  take  part  therein,  by  examining 
and  cross-examining  the  witnesses  who   might    he   produced,  and 


91G  LAW    OF    EVIDENCE    IN    CRIMINAL   CASES. 

propounding  such  questions,  and  offering;  such  suggestions  in  rela- 
tion to  the  proceedings,  and  presenting  such  comments  on  the 
testimony,  when  the  same  shall  be  concluded  (under  the  approba- 
tion of  the  court)  as  they  might  deem  necessary."  The  court 
after  mature  consideration,  decided  that  the  application  could  not 
be  granted.  Ives,  Military  Law,  126,  citing  Trial  by  J.  F. 
Cooper,  8,  9;  Deliart,  Military  Law,  318. 

§  595.  Recalling  Witnesses. — After  the  case  is  finished  and 
the  court  closed,  it  may,  if  it  deem  it  necessary,  recall  any  witness 
for  the  purpose  of  explaining  discrepancies,  or  clearing  up  doubts 
in  the  minds  of  the  members.  In  such  cases  the  accused  should 
always  be  present.  The  accused  may  himself  be  recalled  for  ex- 
plaining points  of  his  statement  not  clear.  Ives,  Military  Law, 
149. 

§  596.  Evidence  of  the  Record  on'Appeal. — Whenever  the 
sentence  of  any  court-martial  shall  be  appealed  from,  which  ap- 
peal shall  always  be  made  within  twenty  days  after  the  decision 
appealed  from  is  made  known  in  published  orders,  such  court,  or 
the  president  thereof,  shall  forthwith  furnish  the  officer,  to  whom 
such  appeal  is  taken,  with  a  statement  of  the  case,  and  of  the  evi- 
dence touching  the  same. 

This  statement  comprises  simply  a  transcript  of  the  record  of 
the  proceedings  in  the  case  of  the  appellant.  King,  Guide  for 
Regimental  Courts-martial,  §  38  (1889). 

If  there  is  any  evidence  before  a  court-martial  establishing  the 
facts  alleged,  or  if  that  court  arrived  at  a  conclusion  that  such 
facts  existed  upon  a  conflict  of  evidence  even  where  the  appellate 
court  might  upon  the  same  evidence  arrive  at  a  different  conclu- 
sion, the  established  practice  would  prevent  a  review  of  the  decis- 
ion. 

But,  on  the  other  hand,  if  there  is  no  legal  evidence  whatever 
that  the  matters  contained  in  such  specification  are  true,  the  court- 
martial  did  not  have  jurisdiction  or  power  to  render  its  judgment. 
People  v.  Townsend,  10  Abb.  N.  C.  169. 

So,  where  it  is  shown  that  the  court-martial  has  jurisdiction  of 
the  subject-matter  and  of  the  person  of  the  accused,  and  evidence 
was  introduced  to  support  its  finding,  its  conclusions,  cannot  be 
reviewed  by  a  writ  of  certiorari.  People  v.  Townsend,  supra ; 
People  v.  New  York  County  Jail  Warden,  100  N.  Y.  20;  Peo- 
ple v.  Rand,  11  Hun,  529. 


EVIDENCE    IN    TKIALS    BY    C0UKTS-MAKT1AL.  917 

§  597.  Partial  Review  of  Miscellaneous  Authorities. — 
In  Re  Bogart,  2  Sawy.  397,  the  United  States  circuit  court 
held  that  the  military  court  has  jurisdiction  to  try  military  of- 
fenses; that  a  former  conviction,  and  the  statute  of  limitations, 
were  matters  of  defense,  which  must  be  investigated  and  deter- 
mined in  the  exercise  of  jurisdiction,  and  not  matters  upon  which 
the  jurisdiction  to  hear  and  determine  the  charge  depends;  that 
these  matters  cannot  be  inquired  into  on  habeas  corpus;  that  the 
civil  courts  have  no  jurisdiction  to  review  the  action  of  the  mili- 
tary courts,  acting  within  their  jurisdiction,  and  still  less,  to  anti- 
cipate, and  intercept  the  latter  in  the  exercise  of  their  lawful 
jurisdiction.  This  question  was  again  examined  and  the  decision 
atli rmed,  lie  White,  9  Sawy.  49,  17  Fed.  Kep.  723,  Mr.  Justice 
Field,  and  the  circuit  judge  concurring.  These  decisions  were 
approved,  and  followed  by  Mr.  Circuit  Judge  Wallace,  in  Me 
Davison,  21  Fed.  Rep.  618,  reversing  the  district  court  on  that 
point.  The  jurisdiction  to  try  offenses  committed  in  the  naval  or 
military  service,  unobstructed  by  the  civil  courts,  was  recognized 
in  Ex  parte  Reed,  100  U.  S.  13,  25  L.  ed.  53S,  and  Re  Boy  art, 
approvingly  cited.  That  the  civil  courts  cannot  interfere  with 
courts-martial  in  the  exercise  of  their  legitimate  jurisdiction, 
was  held  by  the  Supreme  Court  in  Wales  v.  Whitney,  111  U.  S. 
561,  570,  29  L.  ed.  277,  278.  And  in  Smith  v.  Whitney,  116  IT. 
S.  177,  29  L.  ed.  601,  the  Supreme  Court  says,  "this  court  has  re- 
peatedly recognized  the  general  rule,  that  the  acts  of  a  court- 
martial  within  the  scope  of  its  jurisdiction  and  duty,  cannot  be 
controlled  or  reviewed  in  the  civil  courts  by  writ  of  prohibition, 
or  otherwise,"  and  again,  with  numerous  other  cases  cites  both  in 
Re  Bogart  and  Re  White,  supra,  thereby  recognizing  those  cases 
as  properly  laying  down  and  applying  the  law. 

A  court  of  inquiry  is,  strictly  speaking,  not  a  court  at  all,  but 
is  a  council,  board  or  assembly  of  persons  directed  by  a  command- 
ing officer  to  make  inquiry  and  to  collect  evidence  with  respeel  to 
some  doubtful  or  intricate  subject  into  which  lie  cannot  conveni- 
ently inquire  himself.  It  lias  no  judicial  power,  and  cannot,  give 
an  opinion  on  the  merits  of  the  case  inquired  into,  unless  especially 
ordered  to  do  so.  The  proceedings  of  a  court  of  inquiry  may  be 
admitted  a-  evidence  by  a  court-martial  in  cases  not  capital,  nor 
extending  to  the  dismissal  of  an  officer;  provided,  that  the  cir- 
cumstances ar*'  such  that  oral  testimony  cannot  he  obtained.     It  is 


918  LAW    OF    EVIDENCE    IN    CRIMINAL    CASES. 

propable  however,  that  they  would  not  be  admitted  in  evidence 
in  a  civil  court.     Am.  &  Eng.  Enc  Law,  title  Military  Law. 

Martial  or  military  law,  says  Tytler,  does  not,  in  any  respect, 
either  supersede  or  interfere  with  the  civil  and  municipal  laws  of 
the  realm.  Hence  it  appears  that  soldiers  are,  equally  with  all  other 
classes  of  citizens,  bound  to  the  same  strict  observance  of  the  laws  of 
the  country  and  the  fulfillment  of  all  their  social  duties,  and  are 
alike  amenable  to  the  ordinary  civil  and  criminal  courts  of  the 
country  for  all  offenses  against  those  laws  and  breach  of  those 
duties.     Tytler,  Military  Law,  153. 

A  former  acquittal  or  conviction  of  an  act  by  a  civil  court,  says 
Benet,  is  not  a  good  plea  in  bar  before  a  court-martial  on  charges 
and  specifications  covering  the  same.    Benet,  Courts-martial,  115. 

Officers  and  soldiers  of  the  army  who  do  acts  criminal  both  by 
the  military  and  municipal  law,  are,  under  certain  conditions  and 
limitations,  subject  to  be  tried  by  the  civil  authorities  in  prefer- 
ence to  the  military;  but  the  conviction  or  acquittal  of  the  party 
by  the  civil  authorities  will  not  discharge  the  officer  or  soldier 
from  responsibility  for  the  military  offense  involved  in  the  same 
facts.     Steiner's  Case,  6  Ops.  Atty.  Gen.  413. 

No  sentence  of  a  court  martial  inflicting  the  punishment  of 
death  shall  be  carried  into  execution  until  it  shall*  have  been  con- 
firmed by  the  President,  except  in  the  enumerated  cases  of  per- 
sons, including  murderers  convicted  in  time  of  war;  but  the  same 
article  provides  that  in  such  excepted  cases  the  sentence  of  death 
may  be  carried  into  execution,  upon  confirmation  by  the  com- 
manding general  in  the  field,  or  the  commander  of  the  department, 
as  the  case  may  be. 

The  military  forces  of  the  state  are  organized  in  pursuance  of 
the  provisions  of  the  Constitution  of  the  United  States  and  of  the 
several  states  for  the  defense  of  the  country  and  the  maintenance 
of  public  order.  The  citizen  soldier  will  remember  that  it  is  upon 
him,  when  the  civil  power  has  failed,  that  the  state  relies  for  the 
vindication  of  its  laws  and  institutions,  imperiled  from  whatever 
cause;  and  that  in  becoming  the  soldier,  he  has  lost  none  of  the 
characteristics  or  duties  of  the  citizen,  but  has  assumed,  simply, 
such  further  obligations  as  imperatively  demanded  of  him  a  con- 
duct which  shall  inspire  the  confidence  and  respect  of  the  people. 
See  General  Regulations  for  the  Military  Forces  of  the  State  of 
New  York,  p.  3. 


EVIDENCE    IN    TRIALS    BY    COURTS-MARTIAL.  919 

The  judgment  of  a  military  court,  or  a  court-martial,  if  com- 
petent and  constitutional,  may  likewise  establish  res  adjudicata. 
But  ordinarily  an  offense  against  a  state  is  not  barred  by  the 
action  of  a  Federal  court-martial,  nor  is  a  court-martial  barred  by 
a  state  prosecution  for  the  same  offense  in  its  state  aspects. 
Where,  however,  a  court-martial  has,  by  law,  exclusive  jurisdic- 
tion to  try  an  offense,  then  its  judgments  is  a  bar  to  the  proceed- 
ings of  other  tribunals.  "Whart.  Crim.  Ev.  §  576,  citing  Whart. 
Crim.  PI.  &  Pr.  §  439;  Dynes  v.  Hoover,  61  U.  S.  20  How.  65, 
15  L.  ed.  838;  Wooley  v.  United  States,  20  Law  Eep.  631;  United 
States  v.  Beiter  (La.)  4  Am.  L.  Reg.  JSr.  S.  531;  State  v.  Rankin, 
4  Coldw.  145;  United  States  v.  Cashiel,  1  Hughes,  552;  Coleman 
v.  Tennessee,  97  U.  S.  509,  24  L.  ed.  1118. 


CHAPTEE  LXVI. 

INTERSTATE  RENDITION  AND  INTERNATIONAL  EXTRADITION. 

§  598.   Term  Extradition  Defined. 

599.  New  York  Legislative  Enactments  Regarding. 

600.  Evidence  under  United  States  Revised  Statutes. 

601.  Comments  upon  the  Constitutional  Provisions. 

602.  What  Justifies  the  Issuance  of  the  Warrant. 

603.  Rights  of  Parties  Proceeded  Against. 

604.  Conduct  of  Proceedings. 

605.  Evidence  by  Deposition. 

606.  Hearing  on  Application  for. 

607.  Accused  must  be  Tried  for  the  Offense  for  which  he  was 

Extradited. 

a.  Distinction  in  Cases  of  Interstate  Rendition. 

608.  Fugitive  may  be  Surrendered  for  any  Offense. 

609.  Evidence  as  Affected  by  Treaty  Stipulations  with  Foreign 

States. 

610.  What  Evidence  ivill  Authorize  an  Arrest. 

611.  What  the  Affidavits  should  Disclose. 

612.  Evidence  in  Habeas  Corpus  Proceedings. 

§  598.  The  Term  Extradition  Defined. — It  has  been  said 
that  extradition  is  "the  act  of  sending,  by  authority  of  law,  a  person 
accused  of  crime  to  a  foreign  jurisdiction  where  it  was  committed, 
in  order  that  he  may  be  tried  there."     Merlin,  Jurisprudence,  h.  t. 

The  government  of  the  United  States  is  bound  by  some  treaty 
stipulations  to  surrender  criminals  who  take  refuge  within  the 
country,  but  independently  of  such  conventions,  it  is  questionable 
whether  criminals  can  be  surrendered.  1  Kent,  Com.  36;  Re 
Washburn,  4  Johns.  Ch.  106;  1  Am.  Jur.  297;  Com.  v.  Deacon, 
10  Serg.  &R.  125;  22  Am.  Jur.  330;  Story,  Conf.  L.  520;  Wheat. 
International  Law,  111;  1  Bouvier,  Law  Diet.  350. 

Public  policy,  the  security  of  society,  and  the  regular  and  per- 
fect dispensation  of  justice,  as  well  as  the  established  maxims  of 
statutory  construction,  alike  require  that  the  term  "crime"  should 
be  held  to  comprehend  every  violation  of  law  which  is  of  an 

indictable  nature. 

920 


INTERSTATE    RENDITION    AND    INTERNATIONAL    EXTRADITION.       921 

§  599.  New  York  Legislative  Enactments  Regarding.— An 

attentive  perusal  of  statutory  law  regulating  this  subject,  will 
abundantly  disclose  the  fact  that  the  New  York  legislation  on  the 
subject  is  by  far  the  most  effective.  The  geographical  position  of 
the  state  with  reference  to  the  Canadian  frontier,  its  dense  popu- 
lation, the  magnitude  of  its  commercial  enterprises  and  the  facil- 
ity with  which  criminals  have  heretofore  evaded  the  law,  are 
considerations  that  have  inspired  peculiarly  stringent  legislation 
on  the  subject.  This  legislation  can  of  course  effect  nothing  more 
than  the  relations  which  the  state  sustains  to  its  sister  common- 
wealths but  its  attitude  upon  the  subject  has  given  an  impulse  to 
congressional  legislation  that  has  left  its  impress  upon  our  treaty 
relations  with  Great  Britain,  and  has  directly  controlled  the  recit- 
als in  the  present  extradition  treaty  with  Canada.  Section  827  et 
seq.  of  the  New  Y'ork  Code  of  Criminal  Procedure  provides  as 
follows: 

"It  shall  be  the  duty  of  the  governor,  in  all  cases  where,  by  vir- 
tue of  a  requisition  made  upon  him  by  the  governor  of  another 
state  or  territory,  any  citizen,  inhabitant  or  temporary  resident  of 
this  state  is  to  be  arrested  as  a  fugitive  from  justice  (provided 
that  said  requisition  be  accompanied  by  a  duly  certified  copy  of 
the  indictment  or  information  from  the  authorities  of  such  other 
state  or  territory,  charging  such  person  with  treason,  felony  or 
crime  in  such  state  or  territory)  to  issue  and  transmit  a  warrant 
for  such  purpose  to  the  sheriff  of  the  proper  county  or  his  under 
sheriff,  or  in  the  cities  of  this  state  (except  in  the  city  and  county 
of  New  York,  where  such  warrant  shall  only  be  issued  to  the 
superintendent  or  any  inspector  of  police)  to  the  chiefs,  inspectors 
or  superintendents  of  police,  and  only  such  officers  as  are  above 
mentioned,  and  such  assistants  as  they  may  designate  to  act  under 
their  direction  shall  be  competent  to  make  service  of  or  execute 
the  same.  The  governor  may  direct  that  any  such  fugitive  be 
brought  before  him,  and  may  for  cause,  by  him  deemed  proper, 
revoke  any  warrant  issued  by  him,  as  herein  provided.  The  offi- 
cer to  whom  is  directed  and  entrusted  the  execution  of  the  gover- 
nor's warrant  must,  within  thirty  days  from  its  date,  unless  sooner 
requested,  return  the  same  and  make  return  to  the  governor  of  all 
his  proceedings  had  thereunder,  and  of  all  facts  and  circumstances 
relating  thereto.  Any  officer  of  this  state,  or  of  any  city,  county, 
town  or  village  thereof,  must,  upon  request  of  the  governor,  fur- 


922  LAW    OF    EVIDENCE    IN    CKIMINAL    CASES. 

nish  him  with  such  information  as  he  may  desire  in  regard  to  any 
person  or  matter  mentioned  in  this  chapter. 

'"Before  any  officer  to  whom  such  warrant  shall  be  directed  or 
intrusted  shall  deliver  the  person  arrested  into  the  custody  of  the 
agent  or  agents  named  in  the  warrant  of  the  governor  of  this 
state,  such  officer  must,  unless  the,  same  be  waived,  as  hereinafter 
stated,  take  the  prisoner  or  prisoners  before  a  judge  of  the  supreme 
court,  of  any  superior  city  court,  or  the  presiding  judge  of  a  court  of 
sessions,  who  shall,  in  open  court  if  in  session,  otherwise  at  cham- 
bers, inform  the  prisoner  or  prisoners  of  the  cause  of  his  or  their 
arrest,  the  nature  of  the  process,  and  instruct  him  or  them  that  if 
he  or  they  claim  not  to  be  the  particular  person  or  persons  men- 
tioned in  said  requisition,  indictment,  affidavit  or  warrant  annexed 
thereto,  or  in  the  warrant  issued  by  the  governor  thereon,  he  or 
they  may  have  a  writ  of  habeas  corpus  upon  filing  an  affidavit  to 
that  effect.  Said  person  or  persons  so  arrested  may,  in  writing, 
consent  to  waive  the  right  to  be  taken  before  said  court  or  judge 
thereof  at  chambers.  Such  consent  or  waiver  shall  be  witnessed 
by  the  officer  intrusted  with  the  execution  of  the  warrant  of  the 
governor,  and  one  of  the  judges  aforesaid  or  a  counselor  at  law  of 
this  state,  and  such  waiver  shall  be  immediately  forwarded  to  the 
governor  by  the  officer  who  executed  said  warrant.  If,  after  a 
summary  hearing  as  speedily  as  may  be  consistent  with  justice, 
the  prisoner  or  prisoners  shall  be  found  to  be  the  person  or  persons 
indicted  or  informed  against,  and  mentioned  in  the  requisition, 
the  accompanying  papers  and  the  warrant  issued  by  the  governor 
thereon,  then  the  court  or  judge  shall  order  and  direct  the  officer 
intrusted  with  the  execution  of  the  said  warrant  of  the  governor 
to  deliver  the  prisoner  or  prisoners  into  the  custody  of  the  a^ent 
or  agents  designated  in  the  requisition  and  the  warrant  issued 
thereon,  as  the  agent  or  agents  upon  the  part  of  such  state  to 
receive  him  or  them;  otherwise  to  be  discharged  from  custody  by 
the  court  or  judge. 

"If  upon  such  hearing  the  warrant  of  the  governor  shall  appear 
to  be  defective  or  improperly  executed,  it  shall  be  by  the  court  or 
judge  returned  to  the  governor,  together  with  a  statement  of  the 
defect  or  defects,  for  the  purpose  of  being  corrected  and  returned 
to  the  court  or  judge,  and  such  hearing  shall  be  adjourned  a  suffi- 
cient time  for  the  purpose,  and  in  such  interval  the  prisoner  or 
prisoners  shall  be  held  in  custody  until  such  hearing  be  finally 
disposed  of. 


INTERSTATE    RENDITION    AND    INTERNATIONAL    EXTRADITION.       923 

"It  shall  not  be  lawful  for  any  person,  agent  or  officer  to  take 
any  person  or  persons  out  of  this  state,  upon  the  claim,  ground  or 
pretext  that  the  prisoner  or  prisoners  consent  to  go,  or  by  reason  of 
his  or  their  willingness  to  waive  the  proceedings  above  described, 
and  any  officer,  agent,  person  or  persons  who  shall  procure,  incite 
or  aid  in  the  arrest  of  any  citizen,  inhabitant  or  temporary  resi- 
dent of  this  state,  for  the  purpose  of  taking  him  or  sending  him 
to  another  state,  without  a  requisition  first  duly  had  and  obtained, 
and  without  a  warrant  duly  issued  by  the  governor  of  this  state, 
served  by  some  officer  as  in  this  section  provided,  and  without, 
except  in  case  of  waiver  in  writing  as  aforesaid,  taking  him  before 
a  court  or  judge  as  aforesaid,  unless  in  pursuance  to  the  provisions 
of  the  following  sections  of  this  chapter,  and  any  officer,  agent, 
person  or  persons  who  shall,  by  threats  of  undue  influence,  per- 
suade any  citizen,  inhabitant  or  temporary  resident  of  this  state 
to  sign  the  waiver  of  his  right  to  go  before  a  court  or  judge  as 
hereinbefore  provided,  or  who  shall  do  any  of  the  acts  declared 
by  this  chapter  to  be  unlawful,  shall  be  guilty  of  a  felony,  and 
upon  conviction  be  sentenced  to  imprisonment  in  a  state  prison  or 
penitentiary  for  the  term  of  one  year. 

"Any  willful  violation  of  this  act  by  any  of  the  above  named 
officers  shall  be  deemed  a  misdemeanor  in  office. 

';c:  828.  Magistrate  to  issue  warrant. — A  magistrate  may  issue  a 
warrant  as  a  preliminary  proceeding  to  the  issuing  of  a  requisition 
Tjy  the  governor  of  another  state  or  territory  upon  the  governor 
of  this  state  for  the  apprehension  of  a  person  charged  with  trea- 
son, felony  or  other  crime,  who  shall  flee  from  justice  and  be 
found  within  this  state. 

"  §  829.  Proceedings  for  arrest  and  commitment  of  the  person 
charged. — The  proceedings  for  the  arrest  and  commitment  of  the 
person  charged  are  in  all  respects  similar  to  those  provided  in  this 
•code,  for  the  arrest  and  commitment  of  a  person  charged  with  a 
public  offense  committed  in  this  .-rate:  except,  that  an  exemplified 
copy  of  an  indictment  found,  or  other*  judicial  proceedings  had 
against  him,  in  the  state  or  territory  in  which  he  is  charged  to 
have  committed  the  offense,  may  be  received  as  evidence  before 
the  magistrate. 

"§  S'M).  When  and  for  what  time  to  be  committed. — If ,  from  the 
•examination  under  such  warrant,  it  appears  probable  that  the 
person  charged  has  committed  the  crime  alleged,  the  magistrate, 


924  LAW    OF    EVIDENCE    IN    CRIMINAL    CASES. 

by  warrant  reciting  the  accusation,  must  commit  him  to  the  proper 
custody  in  his  county,  for  a  time  specified  in  the  warrant,  to 
enable  an  arrest  of  the  fugitive  to  be  made  under  the  warrant  of 
the  governor  of  this  state,  which  commitment  shall  not  exceed 
thirty  days,  exclusive  of  the  day  of  arrest,  on  the  requisition  of 
the  executive  authority  of  the  state  or  territory  in  which  he  i& 
charged  to  have  committed  the  offense,  unless  he  -give  bail,  as 
provided  in  the  next  section,  or  until  he  be  legally  discharged. 

"§  831.  His  admission  to  bail. — Any  judge  of  any  court  named 
in  section  eight  hundred  and  twenty-seven  may,  in  his  discretion, 
admit  the  person  arrested  to  bail,  by  an  undertaking,  with  suffi- 
cient sureties  and  in  such  sum  as  he  deems  proper,  for  his  appear- 
ance before  him  at  a  time  specified  in  the  undertaking,  which 
must  not  be  later  than  the  expiration  of  thirty  days  from  the  date 
of  arrest,  exclusive  of  such  date,  and  for  his  surrender,  to  be 
arrested  upon  the  warrant  of  the  governor  of  this  state. 

"§  832.  Magistrate  to  give  notice  to  district  attorney,  of 
name  of  the  person  and  the  cause  of  his  arrest. — Immediately 
upon  the  arrest  of  the  person  charged,  the  magistrate  must  give 
notice  to  the  district  attorney  of  the  county  of  the  name  of  the 
person  and  the  cause  of  his  arrest. 

"  §  833.  District  attorney  to  give  notice  to  executive  authority  of 
the  state  or  territory,  etc. — The  district  attorney  must  immediately 
thereafter  give  notice  to  the  executive  authority  of  the  state  or 
territory,  or  to  the  prosecuting  attorney  or  presiding  judge  of  the 
criminal  court  of  the  city  or  county  therein,  having  jurisdiction 
of  the  offense,  to  the  end  that  a  demand  may  be  made  for  the 
arrest  and  surrender  of  the  person  charged. 

"§  834.  Persons  arrested  to  be  discharged,  unless  surrendered 
within  the  time  limited. — The  person  arrested  must  be  discharged 
from  custody  or  bail,  unless  before  the  expiration  of  the  time 
designated  in  the  warrant  or  undertaking,  he  be  arrested  under 
the  warrant  of  the  governor  of  this  state." 

§  600.  Evidence  under  United  States  Revised  Statues. — 
Title  lxvi.  of  the  Revised  Statutes  of  the  United  States,  con- 
cerning extradition  reads  as  follows  : 

k' See.  rr_!7<>.  Whenever  there  is  a  treaty  or  convention  for 
extradition  between  the  Government  of  the  United  States  and 
any  foreign  government,  any  justice  of  the  Supreme  Court,  circuit. 


INTERSTATE    RENDITION    AND    INTERNATIONAL    EXTRADITION.       925 

judge,  district  judge,  commissioner,  authorized  so  to  do  by  any  of 
the  courts  of  the  United  States,  or  judge  of  a  court  of  record  of 
general  jurisdiction  of  any  state,  may,  upon  complaint  made  under 
oath,  charging  any  person  found  within  the  limits  of  any  state, 
district,  or  territory,  with  having  committed  within  the  jurisdic- 
tion of  any  such  foreign  government  any  of  the  crimes  provided  for 
by  such  treaty  or  convention,  issue  his  warrant  for  the  apprehension 
of  the  person  so  charged,  that  he  may  be  brought  before  such 
justice,  judge  or  commissioner,  to  the  end  that  the  evidence  of 
criminality  may  be  heard  and  considered.  If,  on  such  hearing, 
he  deems  the  evidence  sufficient  to  sustain  the  charge  under  the 
provisions  of  the  proper  treaty  or  convention,  he  shall  certify  the 
same,  together  with  a  copy  of  all  the  testimony  taken  before  him, 
to  the  secretary  of  state,  that  a  warrant  may  issue  upon  the  requi- 
sition of  the  proper  authorities  of  such  foreign  government,  for 
the  surrender  of  such  person  according  to  the  stipulations  of  the 
treaty  or  convention;  and  he  shall  issue  his  warrant  for  the  com- 
mitment of  the  person  so  charged  to  the  proper  jail,  there  to 
remain  until  such  surrender  shall  be  made."  Benson  v.  Mc- 
Mahon,  127  U.  S.  457.  32  L.  ed.  234. 

In  extradition  cases  the  whole  subject  of  foreign  intercourse  i- 
committed  to  the  Federal  Government.  People  v.  Curtis,  50  M. 
Y.  321,  10  Am.  Rep.  483;  Ex  parte  Windsor,  10  Cox,  C.  C.  121; 
Re  Eno,  Spear,  Extradition.  27G;  Clark,  Extradition,  131,  131; 
7  Legal  News,  360,  361;  10  Quebec  Law  Pep.  194;  Re  Tally,  2') 
Fed/ Rep.  816. 

"  In  every  case  of  complaint  and  of  a  hearing  upon  the 
return  of  a  warrant  of  arrest,  any  depositions,  warrants  or 
other  papers  offered  in  evidence,  shall  be  admitted  and  re- 
ceived for  the  purpose  of  such  hearing  if  they  shall  be  prop- 
erly and  legally  authenticated  so  as  to  entitle  them  to  be 
received  as  evidence  of  the  criminality  of  the  person  so  appre- 
hended, by  the  tribunals  of  the  foreign  country  from  which  the 
accused  party  shall  have  escaped,  and  copies  of  any  such  deposi 
tions,  warrants,  or  other  papers,  shall,  if  authenticated  according 
to  the  law  of  such  foreign  country,  be  in  like  manner  received  as 
evidence;  and  the  certificate  of  the  principal  diplomatic  or  con- 
sular officer  of  the  United  State-  resident  in  such  foreign  country 
shall  be  proof  that  any  such  deposition,  warrant  or  other  paper, 
or  copy  thereof,  is  authenticated  in  the  manner  required  by  this 
.section."     U.  S.  Rev.  Stat.  ,.'  5271. 


926  LAW    OF    EVIDENCE    IN    CRIMINAL    CASES. 

Section  3  of  the  Act  of  August  3, 1882  (22  Stat,  at  L.  215)  pro- 
vides :  "  That  all  hearings  in  cases  of  extradition  under  treaty 
stipulation  or  convention  shall  be  held  on  land,  publicly,  and  in  a 
room  or  office  easily  accessible  to  the  public.  .  .  .  That  on  the 
hearing  of  any  case  under  a  claim  of  extradition  by  any  foreign 
government,  upon  affidavit  being  filed  by  the  person  charged  set- 
ting forth  that  there  are  witnesses  whose  evidence  is  material  for 
his  defense,  that  he  cannot  safely  go  to  trial  without  them,  what 
he  expects  to  prove  by  each  of  them,  and  that  he  is  not  possessed 
of  sufficient  means,  and  is  actually  unable  to  pay  the  fees  of  such 
witnesses,  the  judge  or  commissioner  before  whom  such  claim  for 
extradition  is  heard  may  order  that  such  witnesses  be  subpoenaed; 
and  in  such  case  the  costs  incurred  by  the  process,  and  the  fees  of 
witnesses,  shall  be  paid  in  the  same  manner  that  similar  fees  are 
paid  in  the  case  of  witnesses  subpoenaed  in  behalf  of  the  United 
States.''' 

"  If,  on  such  examination,  it  is  made  to  appear  that  the 
person  so  arrested  is  a  citizen  of  the  United  States,  he  shall 
be  forthwith  discharged  from  arrest,  and  shall  be  left  to  the 
ordinary  course  of  law.  But  if  this  is  not  made  to  appear, 
and  such  court,  judge,  or  commissioner  finds,  upon  the  pa- 
pers hereinbefore  referred  to,  a  sufficient  prima  facie  case  that 
the  matter  concerns  only  the  internal  order  and  discipline  of  such 
foreign  vessel,  or,  whether  in  its  nature  civil  or  criminal,  does  not 
affect  directly  the  execution  of  the  laws  of  the  United  States,  or 
the  rights  and  duties  of  any  citizen  of  the  United  States,  he  shall 
forthwith,  by  his  warrant,  commit  such  person  to  prison,  where 
prisoners  under  sentence  of  a  court  of  the  United  States  may  be 
lawfully  committed,  or  in  his  discretion,  to  the  master  or  chief 
officer  of  such  foreign  vessel,  to  be  subject  to  the  lawful  orders, 
control  and  discipline  of  such  master  or  chief  officer,  and  to  the 
jurisdiction  of  the  consular  or  commercial  authority  of  the  nation 
to  which  such  vessel  belongs,  to  the  exclusion  of  any  authority  or 
jurisdiction  in  the  premises  of  the  United  States  or  any  state 
thereof.  No  person  shall  be  detained  more  than  two  months  after 
his  arrest,  but  at  the  end  of  that  time  shall  be  set  at  liberty  and 
shall  not  again  be  arrested  for  the  same  cause.  The  expenses  of 
the  arrest  and  the  detention  of  the  person  so  arrested,  shall  be 
paid  by  the  consular  officers  making  the  application."  U.  S.  Rev. 
Stat.  §  1081. 

Section  5  of  the  Act  of  Congress  of  August  3, 1882  (22  Stat,  at 


INTERSTATE   RENDITION    AND    INTERNATIONAL    EXTRADITION.       92  7 

L.  215),  provides:  "That  in  all  cases  where  any  depositions,, 
warrants  or  other  papers,  or  copies  thereof,  shall  be  offered  in 
evidence,  upon  the  hearing  of  any  extradition  case  under  title  66 
of  the  Revised  Statutes  of  the  United  States,  such  depositions, 
warrants  and  other  papers,  or  the  copies  thereof,  shall  be  received 
and  admitted  as  evidence  on  such  hearing;  for  all  the  purposes  of 
such  hearing,  if  they  shall  be  properly  and  legally  authenticated, 
so  as  to  entitle  them  to  be  received  for  similar  purposes  by  the 
tribunals  of  the  foreign  country  from  which  the  accused  party 
shall  have  escaped;  and  the  certificate  of  the  principal  diplomatic 
or  consular  officer  of  the  United  States,  resident  in  such  foreign 
country,  shall  be  proof  that  any  deposition,  warrant  or  other 
paper,  or  copies  thereof,  so  offered,  are  authenticated  in  the  man- 
ner required  1  •  y  this  A  ct."  The  certificate  provided  for  by  the  Act 
is  conclusive  evidence  on  the  question  of  authentication;  but  it  is 
not  the  only  evidence  that  may  be  offered  upon  that  point.  Au- 
thentication in  regard  to  original  papers  may  be  made  by  oral 
proof.  Be  Fowler,  is  Blatchf.  437.  4  Fed.  Eep.  303;  Re  Mc- 
Plum,  30  Fed.  Rep.  57;  Re  Wadge,  15  Fed.  Rep.  805,  16  Fed. 
Rep.  333,  21  Blatchf.  300. 

By  the  Act  of  1793,  three  things  are  rendered  necessary  to  pre- 
cede and  justify  the  warrant  of  extradition.  There  must  be  a 
demand  from  the  governor  of  the  state  within  which  the  crime 
has  been  committed  for  the  surrender  of  the  fugitive  who  has  tied 
from  his  jurisdiction.  Such  requisition  must  be  accompanied  by 
an  indictment,  or  an  affidavit  charging  the  commission  of  the 
offense.  And  such  indictment  or  affidavit  must  be  authenticated 
by  the  certificate  of  the  executive  making  the  requisition.  These 
preliminary  conditions  are  essential.  To  say  they  are  not  would 
be  to  disregard  the  law,  and  make  the  executive  an  autocrat.  If 
they  are  essential,  their  presence  or  absence  in  a  given  case  must, 
of  necessity,  become  the  subject  of  judicial  investigation  when 
the  judgment  of  the  law  is  invoked.  The  New  York  Court  of 
Appeals  have  held  that  where  the  preliminary  papers  upon  which 
a  warrant  of  extradition  has  been  granted  are  produced,  and  are 
before  the  court,  it  is  both  right  and  proper  to  examine  them,  and 
judge  and  determine,  when  legal  process  is  invoked,  whether  they 
are  sufficient,  under  the  law, to  justify  the  warrant  of  extradition. 
People  v.  Brady,  56  K  Y.  182. 

"The  words  of  a  statute,  if  of  common  \i><\  arc  to  be  taken  in 
their  natural,  plain,  obvious,  and  ordinary  signification  and  import; 


928  LAW    OF    EVIDENCE    IN    CRIMINAL   CASES. 

I 

and  if  technical  words  are  used,  they  are  to  be  taken  in  a  techni- 
cal sense,  unless  it  clearly  appears  from  the  context,  or  other  parts 
of  the  instrument,  that  the  words  were  intended  to  be  applied 
differently  from  their  ordinary  or  their  legal  acceptation.  The 
current  of  authority  at  the  present  day,  is  in  favor  of  reading 
statutes  according  to  the  natural  and  most  obvious  import  of  the 
language,  without  resorting  to  subtle  and  forced  constructions, 
for  the  purpose  of  either  limiting  or  extending  their  operation. 
A  saving  clause  in  a  statute  is  to  be  rejected,  when  it  is  directly 
repugnant  to  the  purview  or  body  of  the  act,  and  could  not  stand 
without  rendering  the  act  inconsistent  and  destructive  of  itself." 
1  Kent,  Com.  1,  pt.  Ill,  p.  462. 

§  601.  Comments  upon  the  Constitutional  Provisions. — 
The  language  of  the  constitution  is,  as  regards  the  nature  of  the 
duty  to  deliver  the  fugitives,  imperative  and  unequivocal:  "A 
person  .  .  .  charged  with  treason,  felony,  or  other  crime, 
who  shall  flee  from  justice  and  be  found  in  another  state,  shall  on 
demand,"  etc.,  be  delivered  up.  And  the  great  weight  of  author- 
it  v,  as  well  as  the  obvious  import  of  the  language  used,  is  that  the 
constitution  established  an  absolute  right  to  the  surrender,  when 
the  case  was  one  coming  within  the  terms  of  the  constitution, — 
that  is,  the  case  of  a  person  charged  with  crime,  who  had  fled 
from  justice,  and  whose  surrender  was  demanded  by  the  proper 
authority.  It  is  true,  that  the  duty  has  been  by  the  governors  of 
some  of  the  states,  treated  as  discretionary,  but  the  authorities 
are  clearly  against  this  view.  Kentucky  v.  Dennison,  65 U.S.  24 
How.  66,  68,  16  L.  ed.  717.  It  has  been  well  remarked,  in  refer- 
ence to  the  case  last  cited,  that  although  the  court  finally  came  to 
the  conclusion  that  they  had  no  jurisdiction  to  grant  the  man- 
damus prayed  for,  yet  the  views  expressed  in  that  decision  as  to 
the  construction  of  this  clause  of  the  constitution  possess  but  little 
less  than  the  force  of  absolute  authority.  Re  Voorhees,  32  N.  J. 
L.  149. 

§  602.  What  Justifies  the  Issuance  of  the  AVarrant.— To 
justify  the  issuance  of  a  warrant  of  rendition  of  a  fugitive  from 
justice,  it  must  appear,  First,  that  a  demand  of  him  as  a  fugitive 
from  justice  has  been  made  by  the  executive  authority  of  the 
state  where  the  crime  charged  was  committed.  Second,  such 
demand  must  be  accompanied  by  the  copy  of  an  indictment  found, 
or  an  affidavit  made  before  a  magistrate  of  said  state,  charging 


INTERSTATE    RENDITION    AND;    INTERNATIONAL    EXTRADITION.       929 

the  person  so  demanded  with  having  committed  treason,  felony 
or  other  crime;  and,  Third,  such  copy  must  be  certified  as  authen- 
tic by  such  executive  authority.  U.  S.  Const,  art.  4,  §  2;  U.  S. 
Kev.  Stat.  §  52T8;  People  v.  Pinkerton,  17  Hun,  199. 

"  Upon  the  question  whether  the  warrant  of  the  governor  is  con- 
clusive evidence  in  this  proceeding  that  the  party  named  in  the 
warrant  stands  charged  with  crime  in  the  state  demanding  his 
surrender,  I  am  of  opinion  both  on  reason  and  authority  that  the 
warrant  is  conclusive.  The  statute  itself  expressly  provides  that 
the  governor  shall  cause  the  party  to  be  arrested  and  delivered 
up.  It  makes  no  provision  for  any  other  proceedings  whatever 
subsequent  to  the  issue  of  the  mandate  of  the  governor  except  the 
delivery  of  the  party  and  his  removal  by  the  agent  of  the  demand- 
ing state. 

"Not  only  is  there  nothing  in  the  act  to  show  that  any 
proceedings  subsequent  to  the  issue  of  the  warrant  were  con- 
templated to  give  full  authority  for  the  arrest  and  removal  of 
the  party,  but  there  is  nothing  in  the  act  requiring  the  governor 
issuing  the  warranl  to  attach  thereto  the  evidence  or  copies  of 
the  evidence  on  which  lie  acted,  nor  since  the  passage  of  the  act 
has  the  practice  obtained,  so  far  as  appears,  of  attaching  such 
c  >pies. "     Choate,  ■/.,  in  Leary's  Case,  6  Abb.  N.  C.  43. 

Jurisdiction  cannot  be  acquired  by  the  forcible  bringing  of  a 
party  into  the  state.  Neither  can  it  be  obtained  by  acts  which 
could  constitute  a  crime  in  both  countries.  The  prisoner  could 
not  be  said  to  have  "fled"  into  this  state  if  he  had  been  forcibly 
brought  here. 

So  long  as  the  prisoner  comes  voluntarily  into  the  state,  it 
would  seem  that  the  people  are  not  bound  to  inquire  further  as 
to  the  means  or  inducements  which  some  witness  or  third  person 
may  have  used  to  induce  his  coining,  before  tiny  are  permitted 
to  arrest  him.  The  case  is  to  be  considered  the  same  as  though 
the  prisoner  had  tied  from  this  state  into  Canada  and  had  then 
returned  here.  It  makes  no  difference  that  he  fled  from  a,  sister 
state  rather  than  from  this  state.  It  is  sufficient  that  he  is  a, 
"fugitive  from  justice"  and  is  found  in  our  own  state.  Re  Brown, 
4  N.  Y.  Crim.  Rep.  576. 

The  courts  of  a  state  will  not  generally  investigate,  eithei   on 
habeas  corpus  proceedings  or  on  final  trial,  the  mode  of  the  pris- 
oner's  capture,   whether  it  was   legal    or    illegal,  whether   it  was 
.V.i 


930  LAW    OF    EVIDENCE    IN    CKIMINAL    CASES. 

under  lawful  process  or  without  any  process  at  all,  where  he  has 
fled  to  another  state  or  country  and  been  brought  again  into  its 
Jurisdiction.  The  question  is  the  legality  of  the  prisoner's  deten- 
tion, not  the  legality  of  his  arrest,  unless  on  the  complaint  of  the 
governor  of  the  state  whose  laws  were  violated  by  such  unlawful 
arrest. 

This  is  the  accepted  doctrine  of  the  state  and  Federal  courts, 
and  is  founded  on  an  ancient  and  well  settled  principle  of  the 
common  law.  Spear,  Extradition,  181,  492,  554;  7  Am.  &  Eng. 
Enc.  Law,  643,  653,  note;  Re  Fetter,  23  X.  J.  L.  311,  57  Ann 
Dec.  400,  note,  and  cases  cited;  Com.  v.  Sha/w  (Pa.)  6  Crim.  L. 
Mag.  245;  Ex  parte  Barker  (Ala.)  11  Crim.  L.  Mag.  632. 

In  State  v.  Brewster,  7  Vt.  118,  where  the  prisoner  had  been 
kidnapped  in  Canada  and  forcibly  brought  into  the  state  of  Ver- 
mont, his  discharge  was  refused,  and  he  was  held  liable  to  answer 
an  indictment  for  crime  in  the  latter  state.  A  like  ruling  was 
made  in  Ker  v.  Peoph .  11"  111.  627,  51  Am. Rep.  7(H),  in  the  case 
of  one  who  had  been  seized  by  private  persons  in  Peru,  without 
warrant  of  law.  and  was  brought  to  California,  and  from  thence 
to  the  state  of  Illinois  by  process  of  extradition.  The  authorities 
on  the  subject  are  ably  reviewed  in  this  case  by  Scott,  J.,  and  the 
United  States  Supreme  Court,  on  appeal  to  that  tribunal,  declined 
to  disturb  the  judgment  of  the  supreme  court  of  Illinois.  Ker 
v.  Illinois,  119  IL  S.436,  30  L.  ed.  421.  See  also  Spear,  Extra- 
dition, 181-186;  Ex  parte  Ker,  18  Fed.  Rep.  167. 

§  603.  Rights  of  Party  Proceeded  Against. — On  the  exam- 
ination of  a  party  before  a  United  States  commissioner  in  the 
state  of  Minnesota,  in  extradition  proceedings  under  the  Treaty 
of  1842  with  Great  Britain,  he  has  the  right  to  examine  witnesses 
in  his  own  behalf.  Re  Kelley,  25  Fed.  Rep.  268.  The  testimony 
of  the  accused  is  not  admissible,  although  the  judge  be  sitting  in 
a  state  where  such  evidence  is  admissible.  Re  Dugau,  2  Low. 
Dec.  367.  The  Treaty  of  Extradition  with  Great  Britain  does 
not  give  the  accused  the  right  to  be  confronted  by  witnesses 
against  him;  the  evidence  may  be  in  the  form  authorized  in  the 
country  whence  it  comes,  and  in  substance  sufficient  to  warrant 
action  in  the  country  whose  action  is  invoked.  Re  Dugau,  su- 
pra. Extradition  proceedings  do  not  involve  in  their  nature  the 
right  of  accused  not  to  be  prosecuted  upon  any  other  charge  than 
that  upon  which  his  extradition  is  asked.      United  Stat-es  v.  Law- 


INTERSTATE    RENDITION    AND    INTERNATIONAL    EXTRADITION.       931 

rence,  13  Blatchf.  295,  6  Ops.  Atty.  Gen.  691;  United  States  v. 
Caldwell,  8  Blatchf.  131;  Adriance  v.  Lagrave,  59  N.  Y.  110,  IT 
Am.  Rep.  317;  Re  Mill  r,  23  Fed.  Kep.  33.  But  one  extradited 
from  a  foreign  country  may  claim  exemption  from  trial  upon  any 
charge  other  than  that  mentioned  in  the  extradition  proceedings; 
and  this  right  cannot  be  waived.  Ex  parte  Coy,  32  Fed.  Rep. 
911.  It  may  be  open  to  the  petitioner,  when  before  the  Canadian 
courts,  to  show  that  the  extradition  proceedings  were  not  prose- 
cuted in  good  faith.  But,  having  been  surrendered,  it  is  not  for 
him  to  raise  that  question  before  the  tribunals  of  his  own  country. 
Adriance  v.  Lagrave,  supra;  Daw's  Case,  IS  Pa.  37;  He  Miller, 
supra. 

Where  a  person  has  been  brought  within  the  jurisdiction  of  a 
court  upon  a  requisition  as  a  fugitive  from  justice,  and  has  been 
tried  for,  or  discharged  as  to,  the  offense  charged  against  him,  he 
ought  not  to  be  subject  to  arrest  on  a  civil  process  until  a  reason- 
able time  and  opportunity1  has  been  given  him  to  return  to  the 
state  from  which  he  was  taken.  In  the  courts  of  the  United 
States  the  weight  of  judicial  opinion  is  in  favor  of  the  proposition 
that  where  a  party  in  good  faith  is  brought  within  the  jurisdiction 
of  a  state,  or  detained  therein,  being  a  nonresident,  either  as  a 
party  to  a  suit  or  as  a  witness  in  another  suit,  he  is  not  subject  to 
service.  Small  v.  Montgomery,  23  Fed.  Rep.  707;  Juneau  Bank 
v.  McSpedan,  5  Biss.  64;  United  States  v.Bridgman,9  Biss.  221; 
Blair  v.  Turtle,  1  McCrary,  372:  Atchison  v.  Morris,  11  Fed. 
Rep.  582.  Many  of  the  state  courts  hold  the  same  rule.  Comp- 
ton  v.  Wilder,  40  Ohio  St.  130;  People  v.  Detroit  Sup.  Ct,  Judgt . 
40  Mich.  730;  Be  Cannon.  47  Mich.  482;  Baldwin  v.  Branch 
Circuit  Judge,  4S  Mich.  525;  Jacobson  v.  Hosmer,  76  Mich.  234; 
Sherman  v.  Gundlach,  37  Minn.  IIS;  Chubouck  v.  Cleveland,  .".7 
Minn.  466;  Palmer  v.  Rowan,  21  Neb.  452,  59  Am.  Rep.  844; 
Warner  v.  Bright.  52  111.  35;  Williams  v.  Reed,  29  N.J.  L.385; 
Hill  v.  Goodrich,  32  Conn.  588.  The  last  three  cases  go  upon 
the  same  ground  as  Townsend  v.  Smith,  47  Wis.  623,  32  Am. 
Rep.  703.  ' 

§604.  Conduct  of  Proceedings.  The  rules  prescribed  for 
the  conduct  of  proceedings  under  extradition  treaties  are:  (1 1  de- 
mand for  surrender  and  mandate  of  the  president;  (2)  previous 
designation  of  the  commissioner  before  whom  the  warrant  of  ar- 
rest  is  returnable;  (3)  certificates  to  documentary    evidence;  (4) 


932  LAW    OF    EVIDENCE    IN    CRIMINAL    CASES. 

record  b}r  the  commissioner  of  the  proceedings  before  him;  (5) 
verified  translations  of  documents  in  foreign  languages;  (6)  con- 
tents of  complaint.  Re  Ilenrick,  5  Blatchf.  414.  AVhether  a 
party  making  complaint  is  duly  authorized  to  appear  in  behalf  of 
the  foreign  government  is  a  matter  to  be  inquired  into  before  the 
commissioner.  Re  Kelly,  26  Fed.  Rep.  852.  On  motion  of  a 
sovereignty  making  the  demand,  a  commissioner  may  in  his  dis- 
cretion adjourn  the  hearing  of  the  extradition  proceedings.  Re 
Ludwig,  32  Fed.  Rep.  774;  State  v.  Jackson  (Tenn.)  1  L.  R.  A. 
373,  note. 

§  605.  Evidence  by  Deposition. — Copies  of  depositions  taken 
by  a  magistrate  in  a  foreign  country  must  be  certified  by  the 
United  States  Consul  there  to  be  authenticated  so  as  to  entitle 
them  to  be  received  for  similar  purposes  by  the  tribunals  of  the 
foreign  country.  Re  MePlmn,  24  Blatchf.  254,  30  Fed.  Rep. 
57.  Upon  hearing  a  case  arising  under  treaty,  not  only  copies  of 
depositions,  but  also  copies  of  warrants  and  other  papers,  certified 
un4der  the  hand  of  the  person  issuing  the  same,  and  attested  on 
oath  of  the  party  producing  them  to  be  true  copies,  are  admissible 
as  evidence  of  criminality  of  the  accused.  Ex  parte  Ross,  2 
Bond,  252.  The  Act  of  Congress  of  I860,  relating  to  proof  of 
authenticity  of  papers  produced  in  the  proceedings,  does  not  re- 
peal prior  acts,  but  merely  provides  another  mode  of  authentica- 
tion. Ex  parte  Ross,  supra.  The  judicial  proceeding  in  a  Prus- 
sian court  being  valid  evidence  in  that  country,  a  certificate  of 
the  United  States  Minister,  that  the  documents  are  legally  authen- 
ticated, entitles  them  to  be  received  here  as  evidence  where  the 
certificates  are  insufficient  form.  Re  Behrendt,  23  Blatchf.  40; 
Re  Fares,  7  Blatchf.  345;  Re  Wadge,  15  Fed.  Rep.  864,  21 
Blatchf.  300.  Under  the  Act  of  18S2,  regarding  evidence  in  ex- 
tradition cases,  the  certificate  of  the  resident  minister  to  copies  of 
documentary  evidence  from  abroad  may  be  supplemented  by  oral 
proof  of  competency  of  the  originals.  Re  Wadge,  supra;  Re 
Henrich,  5  Blatchf .  414.  Under  the  Revised  Statutes,  deposi- 
tions may  be  authenticated  by  a  Vice  Consul  of  the  United  States. 
Rt   II, /res,  32  Fed.  Rep.  165. 

The  Act  of  Congress  declares  in  substance  "that  in  extradition 
cases  copies  of  depositions  relating  to  the  allegations  in  the  com- 
plaint shall  be  received  and  admitted  as  evidence  on  the  hearing, 
for  all  the  purposes  of  the  hearing,  if  they  shall  be  properly  and 


INTERSTATE    RENDITION    AND    INTERNATIONAL    EXTRADITION.       933 

legally  authenticated,  so  as  to  entitle  them  to  be  received  for  sim- 
ilar purposes  by  the  tribunals  of  the  foreign  country  from  which 
the  accused  party  shall  have  escaped,  and  the  certificate  of  the 
principal  diplomatic  or  consulate  officer  shall  be  proof  that  any 
deposition,  warrant,  or  other  paper,  or  copies  thereof  so  offered, 
are  authenticated  in  the  manner  required  by  this  Act."  See  22 
Stat,  at  L.  p.  216,  §  5, 

The  certificate  of  the  consul  to  the  depositions  fully  meets  the 
requirements  of  this  Act  to  entitle  depositions  to  be  received 
by  the  commissioner  as  evidence  of  criminality.  It  has  been  held 
by  all  tribunals  which  have  passed  upon  this  Act  of  1882  that 
"similar  purposes"  refer  to  the  words  "for  all  the  purposes  of  such 
hearing,"  that  is,  to  proof  of  criminality.  See  Re  MePhun,  30 
Fed.  Rep.  57;  Be  Rerris,  32  Fed.  Rep.  583;  Be  Renrioh,  5 
Blatchf.  414. 

§  606.  Hearing  on  Application  for. — Where  there  is  an 
application  for  extradition,  sustained  by  complaint  on  oath,  it  is 
not  for  the  judge  to  consider  whether  or  not  a  foreign  govern- 
ment has  authorized  the  application;  he  has  only  to  examine  the 
evidence  of  criminality,  and  if  not  sufficient  to  sustain  the  charge, 
to  certify  the  same  to  the  secretary  of  state.  Re  Dugau,  2  Low. 
Dec.  367.  The  first  question  is  one  of  law,  open  upon  the  face 
of  the  papers  to  judicial  inquiry;  the  second  is  one  of  fact,  upon 
which  the  governor's  decision  is  sufficient  to  justify  removal  until 
the  presumption  in  its  favor  is  overthrown.  Roberts  v.  Beilly, 
116  U.  S.  80,  29  L.  ed.  544.  In  a  proceeding  under  the  Treaty 
with  Great  Britain  evidence  of  criminality  must  be  such  as  would 
justify  the  arrest  and  commitment  of  the  accused  according  to 
law  in  the  place  where  he  is  found.  Re  MePhun,  24  Blatchf. 
254,30  Fed.  Rep.  57;  Ex  parte  Kaine,  3  Blatchf.  1;  United 
States  v.  Warr,  3  N.  Y.  Legal  Obs.  346;  Be  Heilbronn,  L2  N.  Y. 
Legal  Obs.  65;40ps.  Atty.  Gen.  201,  330;  Be  Kelley,  2  Low.  Dec. 
339;  Be  Macdonnell,  11  Blatchf.  170;  Be  Fan:.,  2  Abb.  U.  S. 
346. 

In  People  v.  Pinkerton,  17  Hun,  199,  it  was  held,  that 
"Where  a  warrant  is  issued  by  the  governor  for  the  rendition  of 
a  fugitive  from  justice,  the  court  cannot  go  behind  the  warrant 
and  inquire  into  the  truth  of  the  facts  recited  in  it.  The  governor 
in  determining  that  the  A.  t  of  Congress  has  been  complied  with, 
has  no  jurisdiction  to  inquire  into  the  truth  of  the  charges  made, 


(J34  LAW    OF    EVIDENCE    IN    CRIMINAL    CASES. 

or  to  look  outside  of  the  papers  presented  to  determine  whether 
or  not  the  person  demanded  is  a  fugitive  from  justice.  The 
fact  that  the  person  has  committed  a  crime  in  another  state  and 
that  he  has  been  found  in  this  state,  established  conclusively 
that  he  is  a  fugitive  from  justice."  It  was  also  said  in  that 
case  that  wdiere  "the  rendition  warrant  is  accompanied  by  the 
papers  on  which  it  issued,  the  question  as  to  the  sufficiency  of 
those  papers,  as  a  compliance  with  the  Act  of  Congress,  is  before 
the  court."  That  case  was  approved  by  the  court  of  appeals  in 
People  v.  Prnkerton,  77  N.  Y.  245,  and  it  was  held  that  the 
"recitals  in  the  warrant  of  a  governor  of  this  state  for  the  arrest 
of  a  fugitive  from  the  justice  of  another  state  are  to  be  taken,  at 
least  prima  facie,  as  true."  In  People  v.  Dono/me,  84  N.  Y. 
438,  it  was  held,  viz  :  "Where  the  papers  upon  which  a  warrant 
of  extradition  is  issued  are  withheld  by  the  executive,  the  warrant 
itself  can  only  be  looked  to  for  the  'evidence  that  the  essential 
conditions  of  its  issue  have  been  complied  with,  and  it  is  sufficient 
if  it  recites  what  the  law  requires."  In  the  opinion  delivered  in 
that  case  it  was  said :  "Where,  however,  the  papers  upon  which 
the  warrant  is  founded  are  not  produced,  but  are  withheld  by  the 
executive  in  the  exercise  of  official  discretion  and  authority,  we 
can  look  only  to  the  warrant  itself,  and  its  recitals,  for  the  evi- 
dence that  the  essential  conditions  of  its  issue  have  been  fulfilled." 
§  607.  Accused  must  be  Tried  for  the  Offense  for  which 
he  was  Extradited. — Evidence  is  always  relevant  which  tends 
to  show  that  the  accused  is  on  trial  for  an  offense  other  than  the 
one  specified  in  the  papers  upon  which  he  was  extradited.  The 
elaborate  and  exhaustive  opinion  of  Valentine,  Justice,  in  the 
recent  ease  of  State  v.  Hall,  40  Kan.  338,  commends  itself  to  our 
judgment,  as  a  correct  exposition  of  the  law;  and  it  would  be 
difficult  to  add  anything  to  the  force  of  his  reasoning.  Can  a 
person  be  extradited  for  one  offense  and  immediately  tried  for  a 
wholly  different  offense  ?  We  would  think  not.  It  is  a  general 
maxim  of  law  that  judicial  process  shall  not  be  abused.  But  to 
try  a  person  for  an  offense  other  than  the  one  for  which  he  was 
extradited  would  be  an  abuse  of  judicial  process.  Within  this 
broad  and  general  maxim  is  included  the  following  more  definite 
rule  of  law,  to  wit :  Where  the  presence  of  a  person  has  been 
changed  from  a  place  outside  of  the  territorial  jurisdiction  of  a 
court  of  justice  to  a  place  within  such  jurisdiction,  and  this  change 


INTERSTATE    RENDITION    AND    INTERNATIONAL    EXTRADITION.       935 

has  been  procured  through  the  instrumentality  of  another  person 
and  upon  a  pretext  of  thereby  accomplishing  some  particular  pur- 
pose, such  first  mentioned  person  cannot,  after  his  presence  has 
been  thus  obtained  within  the  territorial  jurisdiction  of  the  court, 
and  before  he  has  had  an  opportunity  to  return,  be  prosecuted  in 
such  court  by  the  person  who  has  thus  been  instrumental  in  pro- 
curing his  presence,  for  the  purpose  of  accomplishing  some  wholly 
different  purpose.  This  rule  of  law  has  often  been  applied  by 
the  courts  in  civil  cases :  Van  Horn  v.  Great  Western  Mfg.  Co. 
37  Kan.  523,  520,  and  cases  there  cited;  Spear,  Extradition,  526, 
and  cases  there  cited;  Compton  v.  WUch  r,  40  Ohio  St.  130.  A 
fugitive  from  justice  can  be  obtained  from  another  state  or 
country  only  with  the  consent  of  the  executive  authorities  of  such 
other  state  or  country;  and  for  a  state  to  procure  a  fugitive  from 
justice  from  some  other  state  or  country  to  be  tried  for  some  par- 
ticular offense,  by  the  consent  of  such  other  state  or  country,  and 
then  to  try  him  for  another  and  a  different  offense  before  he  has 
had  an  opportunity  to  return,  would  be  such  an  unwarranted 
abuse  of  judicial  process,  such  a  fraud  upon  justice,  such  an  act  of 
perfidy,  that  no  court  in  any  country  should  for  a  moment  tolerate 
the  same. 

The  foregoing  rule  applies  in  criminal  cases  where  the  fugitive 
from  justice  has  been  extradited  from  a  foreign  country.  United 
States  v.  Bauscher,  119  U.  S.  407,  30  L.  ed.  425;  United  6 
v.  Watts,  8  Sawy.  370;  Ex  parte  Hibhs^Q  Fed.  Rep.  421:  Ex 
parte  Coy.  32  Fed.  Rep.  911.  and  note;  State  v.  Vanderjpool,  39 
Ohio  St. '2 73,  48  Am.  Rep.  431. 

a.  Distinction  in  Cases  of  Interstate  Rendition.— It  is  our 
endeavor  in  this  subdivision  to  specifically  note  a  distinction  of 
great  importance  pertaining  to  this  subject.  For  eight)  years  the 
claim  has  been  steadily  advanced  in  behalf  of  fugitive  criminals 
and  maintained  with  great  ingenuity  and  vigor,  that  under  no 
circumstances  can  he  be  tried  for  any  other  offense  than  that 
specifically  stated  in  the  demanding  papers  served  upon  the 
■utive  of  the  asylum  state.  This  theory  expand-  its  many 
plausibilities  upon  the  cardinal  principles  that  underlie  treaty 
stipulations  with  foreign  states, and  the  extreme  speciousness  that 
supports  the  argument  sustaining  it  have  led  many  courts  of  high 
repute  into  erroneous  rulings  regarding  it.  The  fallacy  oi  the; 
entire  assumption   lies  in  a  misapprehension  of   the    nature  and 


936 % 


LAW    OF    EVIDENCE    IN    CRIMINAL    CASES. 


scope  of  interstate  rendition  on  the  one  hand  and  international 
extradition  on  the  other.  The  first  is  amenable  to  and  circum- 
scribed by  the  recitals  of  the  Federal  Constitution.  The  second 
is  entirely  dehors  that  instrument  and  is  dependent  for  interpre- 
tation upon  treaty  obligations  solely. 

Interstate  rendition  will  permit  the  accused  to  be  tried,  in  the 
demanding  state  for  any  crime  whatever  against  its  laws  irrespect- 
ive of  the  offense  alleged  in  the  moving  papers,  on  the  contrary 
every  principle  of  international  law  and  comity  demands  in  extra- 
dition proceedings  that  the  trial  shall  be  had  only  for  the  identical 
offense  charged.  This  distinction  is  admirably  stated  by  Mr. 
Justice  Jackson  in  Lascelles  v.  Georgia  (U.  S.  Sup.  Ct.)  April  3, 
1S93 — a  case  that  will  effectively  quell  all  future  controversy  on 
the  subject.  "What  follows  under  this  subdivision  is  an  extract 
from  that  able  opinion  : 

"  The  proposition  advanced  on  behalf  of  the  plaintiff  in  error  in 
support  of  the  Federal  right  claimed  to  have  been  denied  him  is, 
that  inasmuch  as  interstate  rendition  can  only  be  affected  when 
the  person  demanded  as  a  fugitive  from  justice  is  duly  charged 
with  some  particular  offense,  or  offenses,  his  surrender  upon  such 
demand  carries  with  it  the  implied  condition  that  he  is  to  be  tried 
alone  for  the  designated  crime,  and  that  in  respect  to  all  of- 
fenses other  than  those  specified  in  the  demand  for  his  surrender, 
he  has  the  same  right  of  exemption  as  a  fugitive  from  justice 
extradited  from  a  foreign  nation.  This  proposition  assumes,  as  is 
broadly  claimed,  that  the  states  of  the  Union  are  independent 
governments,  having  the  full  prerogatives  and  powers  of  nations, 
except  what  have  been  conferred  upon  the  general  government, 
and  not  only  have  the  right  to  grant,  but  do,  in  fact,  afford  to  all 
persons  within  their  boundaries  an  asylum  as  broad  and  secure  as 
that  which  independent  nations  extend  over  their  citizens  and 
inhabitants.  Having  reached,  upon  this  assumption  or  by  this 
process  of  reasoning,  the  conclusion  that  the  same  rule  should  be 
recognized  and  applied  in  interstate  rendition  as  in  foreign  extra- 
dition of  fugitives  from  justice,  the  decision  of  this  court  in 
United  States  v.  liauscher,  119  U.  S.  107,  30  L.  ed.  425  et  seq.,  is 
invoked  as  a  controlling  authority  on  the  question  under  consid- 
eration. If  the  premises  on  which  this  argument  is  based  were 
sound,  the  conclusion  might  be  correct.  But  the  fallacy  of  the 
argument  lies  in  the  assumption  that  the  states  of  the  Union 


INTERSTATE    RENDITION    AND    INTERNATIONAL    EXTRADITION.       937 

occupy  towards  each  other,  in  respect  to  fugitives  from  justice,, 
the  relation  of  foreign  nations,  in  the  same  sense  in  which  the 
general  government  stands  towards  independent  sovereignties  on 
that  subject;  and  in  the  further  assumption  that  a  fugitive  from 
justice  acquires  in  the  state  to  which  he  may  flee  some  state  or 
personal  right  of  protection,  improperly  called  a  right  of  asylum, 
which  secures  to  him  exemption  from  trial  and  punishment  for  a 
crime  committed  in  another  state,  unless  such  crime  is  made  the 
special  object  or  ground  of  his  rendition.  This  latter  position  is 
only  a  restatement,  in  another  form,  of  the  question  presented  for 
our  determination.  The  sole  object  of  the  provision  of  the  Con- 
stitution and  the  Act  of  Congress  to  carry  it  into  effect  is  to  secure 
the  surrender  of  persons  accused  of  crime,  who  have  fled  from 
the  justice  of  a  state,  whose  laws  they  are  charged  with  violating. 
Neither  the  Constitution,  nor  the  Act  of  Congress  providing  for 
the  rendition  of  fugitives  upon  proper  requisition  being  made, 
confers,  either  expressly  or  by  implication,  any  right  or  privilege 
upon  such  fugitives  under  and  by  virtue  of  which  they  can  assert, 
in  the  state  to  which  they  are  returned,  exemption  from  trial  for 
any  criminal  act  done  therein.  lSTo  purpose  or  intention  is  mani- 
fested to  afford  them  any  immunity  or  protection  from  trial  and 
punishment  for  any  offenses  committed  in  the  state  from  which 
they  flee.  On  the  contrary,  the  provision  of  both  the  Constitu- 
tion and  the  statutes  extends  to  all  crimes  and  offenses  punishable 
by  the  laws  of  the  state  where  the  act  is  done.  Kentucky  v. 
Dennison,  65  U.  S.  24  How.  66,  101,  102,  16  L.  ed.  717,  727;  Ex 
parte  Reggel,  114  U.  S.  642,  29  L.  ed.  250. 

"The  case  of  United  States  v.  Raitscher,  110  U.  S.  107,  30  L. 
ed.  425,  has  no  application  to  the  question  under  consideration, 
because  it  proceeds  upon  the  ground  of  a  right  given  impliedly 
by  the  terms  of  a  treaty  between  the  United  States  and  Great 
Britain,  as  well  as  expressly  by  the  acts  of  Congress  in  the  case  of 
a  fugitive  surrendered  to  the  United  States  by  a    foreign  nation." 

A  fugitive  from  justice  surrendered  by  one  state  upon  the 
demand  of  another,  is  not  protected  from  prosecution  for  offenses 
other  than  that  for  which  he-  was  rendered  up,  but  may,  aftei 
being  resorted  to  the  demanding  state,  be  lawfully  tried  and 
punished  for  any  and  all  crimes  committed  within  its  territorial 
jurisdiction,  either  before  or  after  extradiction.  Re  N~oi/8,  17 
Alb.  L.  J.  407;  Ham  v.  State,  4  Tex.  App.  045;  State  v.St<  wart, 


i)38  LAW    OF    EVIDENCE    IN    CRIMINAL   CASES. 

60  Wis.  587,  50  Am.  Eep.  388;  People  v.  Cross,  135  N.  Y.  53G; 
Re  Miles,  52  Vt.  609. 

It  is  settled  that,  except  in  the  case  of  a  fugitive  surrendered 
by  a  foreign  government,  there  is  nothing  in  the  Constitution, 
treaties  or  laws  of  the  United  States  which  exempts  an  offender 
brought  before  the  courts  of  a  state  for  an  oifense  against  its  laws, 
from  trial  and  punishment,  even  though  brought  from  another 
state  by  unlawful  violence,  or  by  abuse  of  legal  process.  Ker  v. 
Illinois,  119  U.  S.  436,  444,  30  L.  ed.  421,  424;  Malum  v.  Justice, 
127  U.  S.  TOO,  707,  70S,  712,  32  L.  ed.  2S3,  285-287;  Cook  v. 
Hart,  146  U.  S.  183,  190,  192,  36  L.  ed.  934,  938,  ^39. 

§  608.  Fugitive  may  be  Surrendered  for  any  Offense. — 
The  statute  requiring  the  surrender  of  a  fugitive  from  justice 
found  in  one  of  the  territories,  to  the  state  in  which  he  stands 
charged  with  treason,  felony,  or  other  crime,  embraces  every 
offense  known  to  the  laws  of  the  demanding  state,  including  mis- 
demeanors. Each  state  has  the  right  to  prescribe  the  forms  of 
pleading  and  process  to  be  observed  in  her  courts,  in  both  civil 
and  criminal  cases,  subject  only  to  those  provisions  of  the  national 
Constitution  designed  for  the  protection  of  life,  liberty  and  prop- 
erty in  all  the  states  of  the  Union;  consequently,  in  a  case  involv- 
ing the  surrender,  under  the  Act  of  Congress,  of  a  fugitive  from 
justice;  it  may  not  be  objected  that  the  indictment  is  not  framed 
according  to  the  technical  rules  of  criminal  pleading,  if  it  con- 
forms substantially  to  the  laws  of  the  demanding  state.  Upon  the 
executive  of  the  state  or  territory  in  which  the  accused  was  found 
rests  the  responsibility  of  determining  whether  he  is  a  fugitive 
from  the  justice  of  the  demanding  state.  But  the  Act  of  Con- 
gress does  not  direct  or  authorize  his  surrender,  unless  it  is  made 
to  appear  that  he  is,  in  fact,  a  fugitive  from  justice.  If  the 
determining  of  that  fact,  upon  proof  before  the  executive  of  the 
state  where  the  alleged  fugitive  is  found,  is  subject  to  the  judicial 
review  upon  habeas  corpus,  the  accused,  being  in  custody  under 
his  warrant  which  recites  the  requisition  of  the  demanding  state, 
accompanied  by  an  authentic  indictment,  charging  him  substan- 
tially as  required  by  her  laws  with  a  specific  crime  committed 
within  her  jurisdiction — should  not  be  discharged  because,  in  the 
judgment  of  the  court,  the  proof  showing  that  he  was  a  fugitive 
from  justice  may  not  be  as  full  as  might  properly  have  been 
required.     Ex  parte  Reggel,  114  U.  S.  642,  29  L.  ed.  250. 


INTERSTATE    RENDITION    AND    INTERNATIONAL,    EXTRADITION.       939 

§  609.  Evidence  as  Affected  by  Treaty  Stipulations  with 
Foreign  States. — "  Most  of  the  treaties  [with  foreign  states]  pre- 
scribe the  evidence  required  to  authorize  an  order  of  extradition. 
All  hearings  under  treaty  stipulation  or  convention  shall  be  held 
on  land,  publicly,  and  in  a  room  or  office  easily  accessible  to  the 
public  Act  Aug.  3,  1SS2,  §  1,  22  Stat,  at  L.  215.  .  .  .  On 
the  hearing  of  any  case,  upon  affidavit  being  filed  by  the  person 
charged,  that  he  cannot  safely  go  to  trial  without  certain  witnesses, 
what  he  expects  to  prove  by  each  of  them,  that  he  is  not  possessed 
of  sufficient  means  and  is  actually  unable  to  pay  the  fees  of  such 
witnesses,  the  judge  or  commissioner  before  whom  the  hearing  is 
had  may  order  that  they  be  subpoenaed;  the  costs  to  be  paid  as 
similar  fees  are  paid  in  the  case  of  witnesses  subpoenaed  in  behalf 
of  the  United  States.  Act  Aug.  3,  18S2,  §  3,  22  Stat,  at  L.  215. 
.  .  .  .  Fees  and  costs  shall  be  certified  to  the  Secretary  of 
State  of  the  United  States,  who  shall  authorize  payment  of  the 
same  out  of  the  appropriation  to  defray  the  expenses  of  the  judi- 
ciary, and  shall  cause  the  amount  to  be  reimbursed  by  the  foreign 
government  by  whom  the  proceeding  may  have  been  instituted. 
Act  Aug.  3,  1882,  §  4,  22  Stat,  at  L.  215.  .  .  .  Where  any 
depositions,  warrants,  or  other  papers  or  copies  thereof  shall  be 
offered  in  evidence  upon  the  hearing  of  any  ease,  the  same  shall 
be  received  as  evidence  for  all  the  purposes  of  such  hearing  if  they 
shall  be  legally  authenticated  so  as  to  entitle  them  to  be  received 
for  similar  purposes  by  the  tribunals  of  the  foreign  country  from 
which  the  accused  shall  have  escaped,  and  the  certificate  of  the 
principal  diplomatic  or  consular  officer  of  the  United  States  resi- 
dent in  such  foreign  country  shall  be  proof  that  any  deposition, 
warrant  or  other  paper  or  copies  thereof,  so  offered,  are  authenti- 
cated in  the  manner  required  by  this  Act.  Act  Aug.  3,  1882,  § 
5,  22  Stat,  at  L.  215."  Anderson,  Law  Diet,  title  Extradition^ 
p.  439. 

With  reference  to  these  extradition  proceedings,  the  substance, 
and  not  the  form,  should  be  the  main  object  of  inquiry,  and  they 
should  not  be  conducted  in  any  technical  spirit  with  a  view  to 
prevent  extradition.     Re  He?ires,  33   Fed.  Rep.  L65. 

Some  cases  declare  the  familiar  principle  of  international  law, 
that  the  right  of  one  government  to  demand  and  receive  from 
another  the  custody  of  an  offender  against  its  laws,  and  who  has 
sought  an  asylum  in   such  foreign   country,  depends   upon  treaty 


910  LAW    OF    EVIDENCE    IN    CK1MINAL    CASES 

stipulations  between  such  governments.  Where  no  treaty  exists, 
no  obligation  that  can  be  insisted  upon  exists  to  surrender  crimi- 
nals for  trial  to  the  government  from  which  they  have  fled;  but 
as  a  matter  of  comity  between  nations,  great  offenders  are  usually 
surrendered  on  request  from  the  government  claiming  the  right 
to  try  them.  A  principle  running  through  this  latter  class  of 
cases  has  much  that  commends  itself  to  a  sense  of  justice.  It  is, 
that  where  a  person  whose  extradition  has  been  granted  for  trial 
for  a  particular  crime  named  in  the  extradition  warrant,  the  de- 
manding government  obtains  no  lawful  right  to  try  him  for  any 
other  offenses,  without  bad  faith  to  the  government  that  consented 
to  his  extradition,  and  for  which  it  would  have  just  grounds  to 
demand  reparation.  Such  an  act  would  be  in  violation  of  bo'th 
the  letter  and  spirit  of  the  treaty.     Ken  v.  People,  110  111.   627. 

In  cases  of  extradition  by  a  foreign  government  under  a  treaty, 
the  Supreme  Court  of  the  United  States  holds  that  a  person  who 
has  been  brought  within  the  jurisdiction  of  a  court  by  virtue  of 
proceedings  under  an  extradition  treaty  could  only  be  tried  for 
one  of  the  offenses  with  which  he  is  charged  in  the  proceedings 
for  his  extradition,  until  a  reasonable  time  and  opportunity  has 
been  given  him,  after  his  release  or  trial  upon  such  charge,  to  re- 
turn to  the  country  from  whose  asylum  he  had  been  forcibly  taken 
under  those  proceedings.  United  States  v.  Rauscher,  119  U.  S. 
407,  30  L.  ed.  125. 

A  distinction  is  made  in  some  of  the  authorities  between  civil 
and  criminal  cases.  In  criminal  cases,  some  courts  hold  that  even 
a  forcible  seizure  in  another  country,  and  the  transfer  by  violence 
or  fraud  to  this  country,  is  no  sufficient  reason  why  the  party 
should  not  answer  when  brought  within  the  jurisdiction  of  a  court 
which  has  the  right  to  try  him  for  such  an  offense.  See  Ker  v. 
Illinois,  119  U.  S.  136,  30  L.  ed.  121;  Mahon  v.  Justice,  127  U. 
S.  700,  32  L.  ed.  2S3. 

In  proceedings  for  the  extradition  of  a  fugitive,  evidence  to 
contradict  all  that  of  the  prosecution  is  not  admissible.  The  ac- 
cused is  only  entitled  to  show  that  the  offense  charged  is  not  a 
crime  mentioned  in  the  treaty.  Re  Debaun  (Canada)  11  Crim. 
L.  Mag.  17. 

§  610.   What  Evidence  will  Authorize  an  Arrest. — The 

evidence  to  detain  the  accused,  for  the  purpose  of  surrender,  must 
be  sufficient  to  commit  the  party  for  trial,  if  the  offense  wTas  com- 
mitted in  this  country. 


INTERSTATE    RENDITION    AND    INTERNATIONAL    EXTRADITION.       941 

In  the  case  of  Ex  parte  Kai?ie,  3  Blatchf.  1,  in  1853,  Mr.  Jus- 
tice Nelson  said: 

"The  proof,  in  all  cases  under  a  treaty  of  extradition,  should  be 
not  only  competent,  but  full  and  satisfactory,  that  the  offense  has 
been  committed  by  the  fugitive  in  the  foreign  jurisdiction — suffi- 
ciently so  to  warrant  a  conviction,  in  the  judgment  of  the  magis- 
trate, of  the  offense  with  which  he  is  charged,  if  sitting  upon  the 
final  trial  and  hearing  of  the  case.  No  magistrate  should  order  a 
surrender  short  of  such  proof." 

The  rule  here  announced  does  not  appear  to  have  been  adopted, 
and  is  regarded  with  considerable  suspicion. 

The  evidence  to  justify  the  holding  of  a  prisoner  for  trial  is 
such  as  amounts  to  "probable  cause"  to  believe  him  guilty.  It  is 
not  necessary  that  it  should  he  sufficiently  conclusive  to  author- 
ize his  conviction.  In  U<:  Farez,  7  Blatchf.  345.  Judge  Blatch- 
ford  said  that  he  adopted  the  language  of  Chief  Justice  Marshall, 
sitting  as  a  committing  magistrate  in  Burr's  Case,  who  said  : 

"On  an  application  of  this  kind,  I  certainly  should  not  require 
that  proof  which  would  be  necessary  to  convict  the  person  to  be 
committed,  on  a  trial  in  chief;  nor  should  I  even  require  that 
which  should  absolutely  convince  my  own  mind  of  the  guilt  of 
the  accused;  but  I  ought  to  require,  and  I  should  require,  that 
probable  cause  be  shown;  and  I  understand  probable  cause  to  be, 
a  case  made  out  by  proof,  furnishing  good  reason  to  believe  that 
the  crime  alleged  to  have  been  committed  by  the  person  charged 
with  having  committed  it."     1  Burr's  Trial.  11. 

Another  definition  of  probable  cause  which  has  often  been  quot- 
ed is  that  of  Mr.  Justice  Washington,  in  Munns  v.  Dupont,  3 
Wash.  C.  C.  31,  which  is  as  follows :  "What  then,  is  the  mean- 
ing of  the  term  'probable  cause?'  We  answer,  a  reasonable 
ground  of  suspicion,  supported  by  circumstances  sufficiently 
strong  in  themselves  to  warrant  a  cautious  man  in  the  belief,  that 
the  person  accused  is  guilty  of  the  offense  with  which  he  is 
charged."  This  is  a  very  different  thing  from  requiring  evidence 
sufficient  for  conviction,  which  must  be  such  as  to  leave  no  rea- 
sonable ground  of  guilt.     Moore,  Extradition  &  Rendition,  §  340. 

The  question  of  guilt  or  innocence  is  wholly  irrelevant  in  de- 
termining the  action  of  the  executive  of  the  state  upon  which  the 
demand  is  made.  That  question  is  to  be  investigated  and  deter- 
mined by   the   courts  of   the  state  where  the   alleged   crime   was 


942  LAW    OF    EVIDENCE    IN    CRIMINAL    CASES. 

committed.  But  there  must  he  a  charge  of  crime  existing  against 
the  fugitive  in  the  state  demanding  his  surrender,  before  the  de- 
mand can  legally  be  made,  and  it  was  said  by  Taney,  Ch.  </.,  in 
Kentucky  v.  Dennison,  65  U.  S.  24  How.  104,  16  L.  ed.  728,  that 
it  must  be  a  charge  made  in  the  regular  course  of  judicial  pro- 
ceedings.    People  v.  Brady,  56  N.  Y.  182. 

The  sufficiency  of  the  rules  of  evidence  necessary  to  justify  the 
retention  of  the  alleged  criminal,  must  be  such  as  would  warrant 
his  apprehension  under  a  similar  charge  in  the  asylum  state;  and 
these  rules  of  evidence  may  be  such  as  Congress  has  prescribed, 
or  in  the  absence  of  such  provisions,  and  in  so  far  as  they  may  be 
inapplicable  under  the  common  law. 

"Each  piece  of  the  documentary  evidence  offered  by  the  agents 
of  the  foreign  government  in  support  of  the  charge  of  criminality 
should  be  accompanied  by  a  certificate  of  the  principal  diplomatic 
or  consular  officer  of  the  United  States  resident  in  the  foreign 
country  from  which  the  fugitive  shall  have  escaped,  stating 
clearly  that  it  is  properly  and  legally  authenticated,  so  as  to  enti- 
tle it  to  be  received  in  evidence  in  support  of  the  same  criminal 
charge  by  the  tribunals  of  such  foreign  country."  Re  Henrich, 
5  Blatchf.  414. 

§  611.  What  the  Affidavit  should  Disclose.— The  affidavit 
must  directly  charge  that  petitioner  has  committed  an  offense,  as 
it  would  be  a  dangerous  precedent  to  establish,  that  any  man  may 
be  deprived  of  his  liberty  and  removed  to  another  state  upon  such 
an  accusation.  The  statement  therein,  that  affiant  "has  reason  to 
believe,  and  does  believe,"  that  petitioner  embezzled,  or  fraudu- 
lently converted  to  his  own  use,  the  property  mentioned,  is  not 
the  statement  of  any  fact,  and  for  that  reason  the  affidavit  is 
fatally  defective.  The  language  of  the  supreme  court  of  Michi- 
gan in  Swart  v.  Kimball,  43  Mich.  451,  is  applicable  here: 

"Charges  are  not  verified  by  an  affidavit  that  somebody  is 
informed  and  believes  that  they  are  true.  This  is  mere  evasion 
of  the  law;  the  most  improbable  stories  may  be  believed  by  any 
one,  and  the  man  most  free  from  any  reasonable  suspicion  of 
guilt  is  not  safe  if  he  holds  his  freedom  at  the  mercy  of  any  man 
three  hundred  miles  off,  who  will  swear  that  he  has  been  informed 
and  believes  in  his  guilt. 

"A  mere  affidavit  in  the  form  of  an  information,  containing  no 
evidence,  and  followed  by  no  deposition  stating  any  fact  tending 


INTERSTATE    RENDITION    AND    INTERNATIONAL    EXTRADITION.       943- 

to  show  guilt,  is  insufficient  to  support  a  warrant.  The  liberty  of 
a  citizen  cannot  be  violated  upon  the  mere  expression  of  an  opin- 
ion under  oath,  that  he  is  guilty  of  a  crime."  Ex  parte  Dinimig, 
74Cal.  165. 

In  Ex  parte  Smith,  3  McLean,  121,  the  affidavit  accompanying 
the  requisition  of  the  governor  of  Missouri  for  the  arrest  of  Smith 
was  made  by  one  Boggs,  and  charged  "that  on  the  night  of  the 
sixth  day  of  May,  1842,  while  sitting  in  his  dwelling,  in  the  town 
of  Independence  in  the  county  of  Jackson,  he  was  shot,  with 
intent  to  kill,  and  that  his  life  was  despaired  of  for  several  days, 
and  that  lie  believes,  and  has  good  reason  to  believe,  from  evi- 
dence and  information  now  in  his  possession,  that  Joseph  Smith, 
common  called  the  Mormon  Prophet,  was  accessory  before  the 
fact  of  the  intended  murder,  and  that  the  said  Joseph  Smith  is  a 
citizen  and  resident  of  the  state  of  Illinois." 

This  affidavit  was  held  insufficient  as  a  basis  for  the  governor's 
warrant,  upon  the  ground,  among  others  stated,  that  it  was  not 
positive  in  its  charge. 

§  612.  Evidence  in  Habeas  Corpus  Proceedings. — In  a 
habeas  corpus  proceeding  for  the  discharge  of  an  alleged  fugitive 
it  may  be  shown  by  parol  evidence  that  the  accused  committed 
the  crime  in  the  demanding  state  as  alleged  in  the  warrant  of 
extradition  and  that  he  is  in  fact  a  fugitive  from  the  justice  of 
said  state.  Wilcox  v.  Nolze,  34  Ohio  St.  520.  See  Am.  &  Eng. 
Enc.  Law,  title  Extradition.  27. 

The  Federal  and  state  courts  have  concurrent  jurisdiction  in 
extradition  proceedings.  Ex  parte  Brown,  28  Fed.  Eep.  653;. 
Re  Roberts,  24  Fed.  Rep.  132.  A  person  arrested  under  a  war- 
rant of  extradition  from  one  state  of  the  Union  to  another  "is  in 
custody  under  or  by  color  of  the  authority  of  the  United  States;" 
and  the  national  courts  have  jurisdiction  to  inquire  by  habeas 
corpus  into  and  determine  the  legality  of  the  same.  Re  Doo 
Wbon,  18  Fed.  Rep.  898.  The  question  of  lawful  arrest  of  a  per- 
son as  fugitive  from  justice  from  another  state  may  be  inquired 
into  upon  a  writ  of  habeas  corpus  issued  by  either  a  Federal  or 
state  court.  Roberts  v.  Reilly,  116  U.  S.  80,  29  L.  ed.  544. 
Although  the  courts  have  power,  on  habeas  corpus,  to  review  the 
decisions  of  the  executive  authority  in  extradition  proceedings, 
they  will  not  overrule  such  decisions  unless  they  are  clearly  satis- 


944:  LAW    OF    EVIDENCE    IN    CRIMINAL   CASES. 

fied  that  an  error  lias  been  committed.  Ex  parte  Brown,  supra. 
In  a  case  arising  on  habeas  corpus,  the  court  cannot  investigate 
the  question  as  to  the  guilt  or  innocence  of  the  defendant  {Re 
Roberts,  supra)  or  the  grade  of  the  guilt.  Re  Palmer,  18  Int. 
Rev.  Rec.  84.  Where  there  is  sufficient  competent  evidence 
before  the  commissioner  for  him  to  exercise  his  judgment  as  to 
its  sufficiency,  his  decision  will  not  be  reviewed  on  habeas  corpus. 
Re  Wadge,  21  Blatchf.  300.  The  circuit  court  has  power  on  a 
writ  of  habeas  corpus,  in  conjunction  with  a  writ  of  certiorari,  to 
revise  the  action  of  the  commissioner  committing  accused  for  sur- 
render under  an  extradition  treaty,  lit  Henrich,  5  Blatchf.  414. 
If  the  commissioner  should  commit  the  prisoner  upon  no  clearer 
or  more  convincing  testimony  than  was  presented  at  the  former 
examination,  the  circuit  court  has  power  to  review  the  testimony 
and  correct  his  error.  Re  Kelly,  20  Fed.  Rep.  852.  The  court 
will  not  reverse  the  decision  of  the  commissioner  on  the  question 
of  criminality  of  the  accused.  Re  Stupp,  12  Blatchf.  501;  Re 
Macdonnell,  11  Blatchf.  170;  Re  Vandervelpen,  14  Blatchf.  187; 
Rt  Wahl,  15  Blatchf.  334;  Re  Wiegand,  14  Blatchf.  370.  Ko 
appeal  lies  from  the  judgment  of  the  United  States  circuit  court 
on  a  habeas  corpus  in  an  extradition  case.  Re  Henrich,  supra. 
A  fugitive  from  justice,  charged  with  crime,  will  not  be  released 
on  habeas  corpus,  because  he  was  induced  by  a  stratagem  to  come 
within  territory  where  he  could  be  properly  arrested,  provided 
the  stratagem  used  was  not  itself  an  infraction  of  law.  Ex  parte 
Brown,  supra.  But  where  a  prisoner  is  held  under  the  sentence 
of  any  court  of  the  United  States  in  regard  to  a  matter  wholly 
beyond  or  without  the  jurisdiction  of  that  court,  he  may  be  dis- 
charged on  a  writ  of  habeas  corpus.  Ex  parte  Yarbrough,  110 
U.  S.  651,  28  L.  ed.  274. 

Mr.  Church,  in  his  work  on  Habeas  Corpus,  says:  "A  warrant 
for  the  arrest  and  return  of  a  fugitive  criminal  must  recite  or  set 
forth  the  evidence  necessary  to  authorize  the  state  executive  to 
issue  it;  and  unless  it  does  it  is  illegal  and  void."  He  cites  in 
support  of  his  text  Rt  />'><>  Woon,  18  Fed.  Rep.  898.  That  case 
fully  supports  the  text,  and  cites  as  authority  Ex  parte  Smith,  3 
McLean,  121,  and  Ex  parte  Thornton,  9  Tex.  635;  Ex  pjarte 
Stanley,  25  Tex.  App.  372. 

"The  certainty  of  the  commitment  ought  to  appear;  and  a  com- 
mitment is  liable  to  the  same  objection  where  the  case  is  so  loosely 


INTERSTATE    RENDITION    AND    INTERNATIONAL    EXTRADITION.       94:5 

stated  that  the  court  cannot  adjudge  whether  there  was  a  reason- 
able ground  of  commitment  or  not.  A  commitment  does  not  suf- 
ficiently state  the  offense  by  simply  designating  it  by  the  species 
or  class  of  crimes  to  which  the  committing  magistrate  may  con- 
sider it  to  belong,  but  it  ought  to  state  the  facts  charged  or  found 
to  constitute  the  offense,  with  sufficient  particularity  to  enable  the 
court,  on  a  return  to  the  habeas  corpus,  to  determine  what  par- 
ticular crime  is  charged  against  the  prisoner."  McCunn,  -/.,  in  Re 
Leland,  7  Abb.  Pr.  N.  S.  64.  See  also  Re  Butter,  7  Abb.  Pr. 
N.  S.  67. 

Note. — What  follows  is  a  draft  of  the  regulations  for  many  years  in  vogue 
in  the  state  of  New  York,  relating  to  the  topic  under  review.  They  have  been 
cordially  endorsed  by  ex-Governor  Rice,  of  Massachusetts,  who  pronounces 
them  in  every  way  admirable,  meeting  all  of  the  legal  requirements,  both  as 
regards  the  rights  of  the  accused,  and  the  duties  of  the  executive.  They  are 
reputed  to  have  been  drafted  by  the  laie  Hon.  John  K.  Porter,  and  are  thought 
to  be  worthy  of  insertion  as  affording  several  valuable  suggestions  as  to  the 
rules  of  evidence  governing  these  cases. 

RULES  FOR  APPLICATIONS  FOR  EXTRADITION. 

State  op  New  York,  Executive  Chamber,  Aug.  1,  1855. 

The  following  rules  will  be  observed  by  the  Governor  of  the  State  of  New 
York  in  reference  to  applications  for  requisitions  on  Governors  of  other  States 
and  Territories,  and  the  Chief  Justice  of  the  Supreme  Court  of  the  District  of 
Columbia.  U.  S.  Rev.  Stat.  §  527S;  Rev.  Stat,  relating  to  the  District  of 
Columbia,  §  843. 

The  application  must  be  made  by  the  district  attorney  of  the  county  in 
which  the  offense  was  committed,  and  must  be  in  duplicate  original  papers, 
except  indictments,  which  must  be  certified  copies. 

The  following  must  appear  by  the  certificate  of  the  district  attorney: 

A.  The  full  name  of  the  person  for  whom  extradition  as  asked,  together  with 
the  name  of  the  agent  proposed,  to  be  accurately  spelled,  Roman  capital  letters, 
for  example,  JOHN  DOE. 

B.  That  in  his  opinion  the  ends  of  public  justice,  require  that  the  alleged 
criminal  be  brought  to  this  state  for  trial,  at  the  public  expense,  and  that  he  is 
willing  that  such  expense  be  a  charge  on  the  county  in  which  the  crime  was 
committed. 

C.  That  he  believes  he  has  sufficient  evidence  to  secure  a  conviction  of  the 
fugitive. 

D.  That  the  person  named  as  agent  is  the  proper  person,  a  public  officer 
(naming  his  official  position),  and  that  he  has  no  interest  in  the  arrest  of  the 
fugitive. 

E.  If  there  has  been  any  former  application  for  a  requisition  for  the  same 
person  growing  out  of  the  same  transaction,  it  must  be  so  stated,  witli  an 
explanation  of  the  reasons  for  a  second  request,  together  with  the  date  of  such 
application,  as  near  as  may  be. 

60 


946  LAW    OF    EVIDENCE   IN    CRIMINAL   CASES. 

F.  If  the  fugitive  is  known  to  be  under  either  civil  or  criminal  arrest,  the 
the  fact  of  such  arrest  and  the  nature  of  such  proceedings  on  which  it  is  based 
must  be  stated. 

G.  That  the  application  is  not  made  for  the  purpose  of  enforcing  the  collec- 
tion of  a  debt,  or  for  any  private  purpose  whatever,  and  that  if  the  requisition 
applied  for  be  granted,  the  criminal  proceedings  shall  not  be  used  for  any 
of  said  objects. 

H.  That  all  papers  in  duplicate  have  been  compared  with  each  other  and 
are,  in  all  respects,  exact  counterparts. 

I.  Whether  the  offense  charged  is  a  felony  or  a  misdemeanor,  with  a  concise 
definition  thereof,  and  a  particular  reference  to  the  statute,  giving  chapter, 
title,  article,  page  and  section,  together  with  any  amendments  thereto,  defining 
the  offense  aud  stating  the  punishment  thereof. 

J.  When  more  than  one  year  has  elapsed  since  the  commission  of  the  crime,, 
a  full  explanation  must  be  given,  and  upon  an  application  where  no  indictment 
has  been  found,  the  reasons  therefor  must  be  stated. 

1.  In  cases  of  false  pretenses,  embezzlement  or  forgery,  and  all  offenses 
known  as  such  prior  to  the  enactment  of  the  Penal  Code,  tue  affidavit  of  the 
principal  complaining  witness  or  informant  that  the  application  is  made  in  good 
faith,  for  the  sole  purpose  of  punishing  the  accused,  and  that  he  does  not 
desire  or  expect  to  use  the  prosecution  for  collecting  a  debt,  or  for  any  private 
purpose,  and  will  not  directly  or  indirectly  use  the  same  for  any  of  said 
purposes. 

2.  Proof  by  affidavit  by  facts  and  circumstances  satisfying  the  executive  that 
the  alleged  criminal  has  fled  from  the  justice  of  the  state,  and  is  in  the  state  on 
whose  executive  the  demand  is  requested  to  be  made,  must  be  given.  No 
mere  unsupported  allegation  will  be  received  or  accepted  as  conclusive  upon 
this  point.  In  addition  to  the  facts  and  circumstances  required,  it  must  affirma- 
tively appear  what  the  occupation  of  the  accused  at  the  time  of  flight  was; 
whether  he  was  a  resident  or  only  in  the  state  transiently;  whether  he  was 
married;  when  the  alleged  fugitive  left  the  state;  and  in  general  the  previous 
history  of  the  accused  so  far  as  it  can  be  ascertained — in  short,  the  affiant's 
reasons  for  his  belief  that  the  accused  is  a  fugitive  from  justice,  and  whether 
he  is  in  the  surrendering  state  trausiently  or  making  it  his  residence,  and  his 
occupation  therein.  If  the  affidavit  be  not  made  by  the  district  attorney  or 
some  public  officer,  the  district  attorney  must  certify  that  the  affiant  is  a 
respectable  person  and  entitled  to  credit. 

3.  If  an  indictment  has  been  found,  certified  copies,  in  duplicate,  must 
accompany  the  application. 

4.  If  an  indictment  has  not  been  found  the  facts  and  circumstances  showing 
the  commission  of  the  crime  charged,  and  that  the  accused  perpetrated  the 
same,  must  be  shown  by  depositions  taken  before  a  magistrate  (a  notary  public 
is  not  a  magistrate  within  the  meaning  of  the  statutes)  in  support  of  an  infor- 
mation which  must  always  be  furnished  in  such  case,  and  no  application  will 
be  received  or  considered  which  is  based  on  an  information  standing  by  itself. 
Conclusions  will  not  be  considered  except  in  connection  with  the  facts  and  cir- 
cumstances from  which  they  are  drawn. 

5.  If  the  crime  of  forgery  is  charged,  an  affidavit  of  the  person  whose  name 
is  alleged  to  have  been  forged,  must  be  produced,  or  its  absence  satisfactorily 
explained. 


INTERSTATE    RENDITION    AND    INTERNATIONAL    EXTRADITION.       947 

6.  If  the  crime  charged  is  seduction,  corroborative  evidence  must  be  fur- 
nished by  affidavit  of  one  or  more  witnesses  taken  before  a  magistrate,  whether 
an  indictment  has  been  found  or  not. 

7.  Except  as  to  the  whereabouts  of  the  accused,  the  sources  of  information 
and  belief  stated,  must  be  given,  and  the  reason  why  such  information  is  not 
verified  by  the  person  possessing  it  stated. 

8.  It  should  be  shown  that  a  warrant  has  been  issued,  and  duplicate  certified 
copies  of  the  same,  together  with  the  returns  thereto,  must  be  furnished  upon 
an  application. 

9.  In  all  cases  of  extradition  where  the  fugitive  is  beyond  the  jurisdiction  of 
the  United  States,  the  application  must,  in  the  first  instance,  be  presented  to 
the  Governor.  All  such  papers  must  be  presented  in  triplicate,  and  conform  to 
the  foregoing  rules.  The  triplicate  copies  must  each  be  certified  by  the 
magistrate,  and  must  each  contain  a  copy  of  the  information,  of  the  depositions- 
in  support  thereof,  and  of  a  warrant  issued  thereon  against  the  accused  for  the 
offense  charged.  Triplicate  copies  of  all  papers  are  absolutely  necessary.  In 
foreign  countries  indictments  are  not  recognized  and  are  absolutely  useless. 

In  Canadian  extradition  each  of  the  three  sets  of  the  papers  required  must 
contain  one  of  the  three  triplicate  copies  of  the  information,  depositions  and 
one  of  the  three  triplicate  original  warrants  issued  thereupon;  also  each  original 
warrant  must  be  accompanied  by  a  copy  of  itself  and  all  certified  in  the  form 
given  on  page  145,  6  Moak's  English  Reports.  Follow  closely  the  practice 
£iven  in  this  volume,  pages  144-147. 

A  copy  of  the  rules  governing  United  States  extradition  will  be  furnished  on 
application  to  the  State  Department  at  Washington. 

10.  Applications  will  not  be  considered  unless  it  affirmatively  appears  the 
alleged  fugitive  was  in  this  state  at  the  time  of  the  commission  of  the  offense. 
Constructive  crime  is  not  within  the  extradition  laws. 

11.  The  official  character  of  the  officer  taking  the  affidavits  or  depositions, 
and  of  the  officer  who  issued  the  warrants  must  be  duly  certified. 

12.  The  district  attorney  asking  a  requisition  must,  within  six  months,  unless 
sooner  required,  after  it  is  issued,  make  a  return  accompanied  by  the  affidavit 
of  the  agent  named  therein,  fully  stating  all  proceedings  had  thereunder  and 
upon  the  information  or  indictment  on  which  the  same  was  based. 

13.  The  Governor  of  this  state  will  deliver  over  to  the  executive  of  any  other 
state  or  territory,  persons  charged  therein  with  crime,  only  when  the  demand 
is  accompanied  by  documents  and  proofs  which  are  in  accordance  with  the 
extradition  laws. 

14.  Upon  the  renewal  of  an  application,  for  example,  on  the  ground  that  the 
fugitive  has  fled  to  another  state,  not  having  been  found  in  the  state  on  which 
the  first  was  granted,  new  papers  in  conformity  with  the  above  rules  must  be 
furnished. 


INDEX. 


ABBREVIATION  OF  NAMES,  judicial  notice  of, 

ABORTION,  dying  declaration  as  to, 

ACCESSORY,  denned, 

ACCOMPLICES,  Evidence  of,  chap,  xli., 
defined, 

immunities  of,  for  testifying, 
necessity  of  corroboration, 
competency  of,  as  •witnesses, 
cross-examination  of, 

ACCUSED,  presence  of,  at  trial, 
failure  of,  to  testify, 
as  witness,  see  Witness. 
questioning  of,  by  court, 
as  witness  as  to  intent, 
compulsory  examination  of  person  of, 
conduct  of,  as  evidence, 
declaration  of, 
good  character  of, 
indictment  based  on  evidence  of, 
right  to  be  confronted  with  witnesses, 
right  of,  to  compel  attendance  of  witnesses, 
testimony  of,  on  preliminary  examination, 

ACQUITTAL.     See  Former  Jeopardy. 

ACTIONS,  of  accused  as  evidence,  127,  501 

ADJOURNMENT.     See  Continuance. 

of  trial  in  progress  to  procure  further  testimony,  157 

ADMISSIONS.     See  Declarations. 

ADULTERY,  chap,  lx.,  847  et  seg. 

defined,  847 

circumstantial  evidence,  sufficiency  of,  847 

other  instances  of  familiarities,  624,  845,  851,  852,  855 

prior  offenses  between  parties,  851,  852,  854,  855 

admissions  as  to  marriage,  852 

adulterous  disposition,  852 

birth  of  child  as  evidence  of,  853 

commission  of,  with  other  parties  than  accused,  854 

prior  chastity  of  woman,  854 

ALIBI,  Evidence  op,  chap,  xlix.,  GS1  i 

defined,  681 

sufficient  proof  of,  G81,  684,  685,  686,  688 

credibility  of,  affected  by  promptness  in  claiming,  682 

burden  of  proof,  684,  686,  687 

effect  of  failure  to  sustain,  GS5,  687 

94!) 


PAGE. 

12 

530 

11 

505  et 

seq. 

505, 

508 

505, 

518 
506 
521 
517 

160, 

176 
219 

247, 

352 
452 
690 

127, 

501 

501,  503, 

669, 

77s 

596, 

598, 

606 
410 

51, 

334, 

382 
267 
357 

950  INDEX. 

PAGE. 

ALMANAC,  to  show  time  moon  rises,  105 

AMENDMENT,  to  cure  variance,  170 

ANCESTORS,  insanity  of,  637 

ANSWERS,  to  letters,  as  evidence,  84 

to  telegrams,  90 

ANTE  NUPTIAL  ISSUE,  effect  of  subsequent  marriage  of  parents,   858,  862 

APPEAL,  harmless  error  in  admission  of  evidence,  257 

objection  to  errors  not  taken  below,  248 

ARREST,  as  affecting  admissibility  of  declarations,  500 

ARSON,  over-insurance  motive  for,  445 

ASSAULTS,  with  intent  to  commit  crime,  758 

ATTORNEY,  privilege  of,  as  witness,  281,  314-317 

privilege  as  to  professional  communications,  299 

prosecuting,  as  witness,  277 

prosecuting,  statements  of ,  as  ground  for  new  trial,  245 

AUTREFOIS  ACQUIT  AND  CONVICT.    See  Former  Jeopardy. 

BASTARDY,  chap,  lxl,  857  et  seq. 

denned,  857 

of  children  born  in  wedlock,  857,  859 

burden  of  proof,  861 

evidence  of  married  woman  as  to  illicit  intercourse,  859,  860 

declarations  of  mother,  859 

corroboration  of  mother's  testimony,  859 

resemblance  as  test  of  parentage,  860 

subsequent  marriage  of  parents,  858,  862 

non-access  as  evidence  of,  858 

BENCH  WARRANT,  for  witness,  264 

BEST  AND   SECONDARY  EVIDENCE,  chap,  v.,  41  et  seg. 

English  rules,  61 

foundation  for  secondary,  42,  45 

parol  evidence  when  copy  of  document  available,  80 

letter-press  copies,  80,  81 

of  telegrams,  89,  95 

photographs,  152 

on  cross-examination,  44 

BIGAMY,  chap,  lvii.,  799  et  seq. 

defined,  79!) 
proof  of  prior  marriage,                                            799,  801,  804,  806,  811 

relation  of  divorce  to,  804 

confessions  of  accused  as  evidence  of  prior  marriage,  805,  806,  809 

what  prosecution  must  show,  807 

competency  of  wives  to  prove  marriages,  810 

presumption  as  to  former  spouse  being  alive,  800 

BILL  OF  PARTICULARS,  right  to,  67,  69 

power  of  court  to  grant,  68 

when  and  how  to  be  demanded,  67 

office  of,  69 


INDEX. 

951 

TAGE. 

BILL  OP  PARTICULARS,  in  what  cases  ordered, 

68 

as  affecting  relevancy, 

67 

exception  necessary  to  review  refusal  to  grant, 

68 

BLOOD   STAINS,  as  evidence  of  homicide, 

767 

BOOKS,  historical,  as  evidence, 

62 

Scientific,  as  Evidence,  chap,  xvi., 

144  et  seq. 

BURDEN  OF  PROOF,  chap,  xxxv., 

421  el  seq. 

distinction  in  civil  and  criminal  cases, 

423 

distinguished  from  weight  of  evidence, 

424 

relation  to  prima  facie  evidence, 

427,  428 

general  rule, 

429 

statutory  regulation  of, 

428 

shifting  of, 

422,  423,  424 

to  what  facts  attaches, 

422 

where- facts  are  peculiarly  within  knowledge  of  party, 

42.3,  426 

of  negative, 

426 

of  corpus  delicti, 

479 

alibi, 

684,  686,  687 

bastardy, 

861 

excise  license, 

425 

forgery, 

779 

former  jeopardy, 

615 

insanity,                                                       426,  636,  637,  659, 

663,  673,  679 

intent, 

463 

justification  of  homicide, 

479,  765 

when  homicide  admitted, 

190 

malice, 

443 

self-defense, 

585 

seduction, 

879 

BURGLARY. 

Embezzlement,  Robbery  and  Burglary,  chap.  Lin., 

742  et  seq. 

defined, 

748 

proof  of, 

749 

presumption  from  possession  of  stolen  goods, 

750,  752 

constructive  breaking, 

750 

evidence  of  former  attempts, 

751 

breaking  into  cemetery  vault, 

753 

BY-STANDERS,  cries  of  as  res  gestm, 

126,  127 

CEMETERY  VAULT,  subject  of  burglary,  753 

CHARACTER. 

Evidence  of  Character,  chap,  xlv,,  596  et  seq. 

of  accused,  596,  598,  606 

of  victim,  596,  605,  765 

of  assailant  in  relation  to  self-defense,  587 

of  witness,  597,  607,  610 
specific  acts  or  charges,                                              599,  601,  603,  604,  607 

negative  evidence  of,  608 

presumption  from  failure  to  prove  good,  599 


952  INDEX. 


CHARACTER,  continued. 

PAGE. 

when  evidence  of  good  admissible, 

361 

when  unavailing, 

606 

consideration  of  by  jury, 

223 

CHARGING  THE  JURY  ON  THE  EVIDENCE, 

chap,  xxirr.,        186  et  seg. 

constitutional  limitations, 

186 

Oregon  statute, 

191 

advisory  merely, 

196 

instructions  to  be  considered  in  entirety, 

194 

on  questions  of  fact, 

187,  188,  190,  195 

as  to  guilt  of  accused, 

196 

as  to  reconciling  conflict  of  evidence, 

192,  193 

as  to  declarations  and  admissions, 

192,  196 

direction  of  verdict, 

199,  229,  233,  238,  239 

instances  of,  erroneous, 

192 

harmless  errors, 

198 

rectifying  erroneous  instructions, 

192 

requests  to  charge, 

197 

disregard  of  charge  by  jury, 

189 

CHARITABLE  DONATIONS,  obtaining  by  false 

pretenses,                       719 

CHARTS,  admissibility, 

62 

CHASTITY,  presumption  as  to, 

21,  854,  876 

of  prosecutrix  for  rape, 

21,  818 

of  prosecutrix  for  seduction, 

606,  867,  870,  875,  880 

CHECK,  unauthorized  filling  in  of,  forgery, 

777 

defined, 

544 

CIRCUMSTANTIAL  EVIDENCE,  chap,  xliii., 

544  et  seg 

test  of  sufficiency, 

546,  550,  552 

contrasted  with  direct, 

548,  559 

latitude  in  reception  of. 

552 

rules  of  induction  applicable  to, 

561 

in  civil  actions  having  criminal  attributes, 

565 

interpretation  of, 

510 

of  adultery, 

847 

of  corpus  delicti, 

469 

of  conspiracy, 

906 

of  forgery, 

784 

of  seduction, 

868,  873,  877 

CLERGYMAN,  as  witness, 

281,  318 

CO-DEFENDANT,  as  witness, 

519 

COMMON  SENSE,  as  guide  for  jury, 

192 

COMPETENCY  OF  WITNESS,  presumption  of, 

275 

California  statute, 

278,  291 

of  deaf  mute, 

289 

of  husband  and  wife, 

280 

infants, 

289 

effect  of  intoxication  on, 

287 

of  lunatic  as  witness, 

286 

INDEX.  953 

PAGE. 

COMPULSORY  COMPARISON,  of  feet  with  foot  prints,  693,  694 
COMPULSORY  EXAMINATION  OF  PERSON  OR  PAPER,  chap,  l., 

690  et  seq. 

to  what  extent  allowable,  690,  691,  692 

in  civil  cases,  694 

COMPULSORY  PRODUCTION  OP  DOCUMENTS,  by  accused,  695 

COMPULSORY  PRODUCTION  OF  DEMONSTRATIVE  EVIDENCE, 

by  accused,  694 

CONCLUSIVENESS,  defined,  35 

of  evidence  as  affecting  admissibility,  72 

of  presumptions,  28 

of  judicial  records,  62 

CONDUCT,  of  accused  as  evidence,  127,  501,  680 

presumption  from,  28 

CONFESSIONS,  as  evidence,  488  et  seq. 

defined,  488 

New  York  statute,  499 

must  be  voluntary,  489,  496 

presumption  as  to  voluntariness,  491,  496,  503 

what  inducement  vitiates,  493,  498,  500,  522,  524 

under  intoxication,  498 

prosecution  must  use  in  entirety  if  at  all,  778 

to  be  cautiously  received  in  evidence,  494 

conclusiveness  of,  497 

necessity  for  corroboration,  499 

repetitions  of,  499 

sufficiency  of,  523 

witnesses  of,  497 

as  proof  of  corpus  delicti,  465,  467,  476,  477 

CONFIDENTIAL  COMMUNICATIONS,  evidence  of,  281,  299,  314,  318 

CONFLICT  OF  EVIDENCE,  duty  of  jury  to  reconcile,  192, 193,  226 

CONSANGUINITY,  incestuous,  proof  of,  841 

CONSPIRACY,  Criminal,  chap,  lxiv.,  899  et  seq. 

defined,  899 

prosecution  of  one  conspirator  only,  901 

proof  of,  901,  904,  906 

declarations  of  co  conspirators,  901,  905 

intent  as  an  element,  904 

overt  act  as  aggravation,  905 

circumstantial  evidence  of,  906 

CONTEMPT,  witnesses,  265 

CONTINUANCE,  Evidence  to  Secure,  chap,  xix.,  162 

grounds  for,  160 

intoxication  of  witness  as  ground  for,  288 

effect  of  admissions  of  adversary,  163,  164 

when  error  to  refuse,  165,  l<j«j 

presumption  of,  27 

CONTRADICTION,  of  witnesses,  368,  370,  37 1 

of  irrelevant  evidence,  71 

CONVERSATIONS,  between  third  persons,  73 


£)54  INDEX. 

CONVICTION.    See  Former  Jeopardy.  page. 

conclusiveness  as  to  guilt,  597 

effect  of,  278,  280 

COOLING  TIME,  what  is  reasonable,  592 

COPIES,  of  public  records,  52,  62 

Federal  statute,  55 

Colorado  statute,  52 

California  statute,  53 

New  York  statute,  54 

judicial  records,  62 

of  records  of  U.  S.  courts,  55 

of  documents,  46 

of  memoranda,  101 

only  true  copies  admissible,  55 

existence  of  does  not  exclude  parol  proof,  80 

of  letters  by  press.  80,  81 

letter  press  copies  as  evidence  of  handwriting,  82 

CORPUS  DELICTI,  chap,  xxxviii.,  465  et  seq. 

defined,  465,  468 
proof  of,                                                                      465,  466,  468,  469,  730 

presumptions  as  to,  17 

burden  of  proof,  479 
confessions  as  proof  of,                                               465,  466,  467,  476,  477 

CORROBORATION,  of  evidence  of  accomplices,  506 

of  confessions,  499 

of  prosecutrix  for  rape,  826,  827,  830 

for  seduction,  807,  868,  872,  873,  877,  878 

COUNSEL,  right  to  have,  160 

to  assist  Judge  Advocate  in  courts-martial,  915 

COUNTERFEIT  MONEY,  passing,  evidence  of  other  instances,  780 

proof  of,  783 

COURTS-MARTIAL,  Evidence  in  Trials  by,  chap,  lxv.,  908  et  seq. 

jurisdiction  of,  908,  917 
rules  of  evidence  in,                                                                    909,  913,  915 

nature  of  laws  enforced  by,  909 

order  of  trial  in,  914,  916 

power  to  originate  evidence,  914 

functions  of  the  Judge  Advocate,  914 

counsel  to  assist  Judge  Advocate,  915 

recalling  witnesses,  916 

review  of  judgments  of,  916 

proceedings  of  court  of  inquiry,  917 

conviction  or  acquittal  in  civil  court,  919 

sentence  of  to  be  approved  by  executive,  919 

judgment  of  as  res  adjudicate,  920 

CREDIBILITY  OF  EVIDENCE,  tests  of,  5 

CREDIBILITY  OF  WITNESSES,  for  jury,  292 

effect  of  falsehood,  203 


INDEX.  955 

PAGE. 

CRIME,  defined,  9,  10 

distinguished  from  misdemeanor,  10 

not  synonymous  with  felony,  10 

not  to  be  implied  in  statute,  10 

enormity  of  as  affecting  proof,  8 

CRIMINAL  EVIDENCE,  how  distinguished  from  civil,  2,  8 

CRIMINAL  LAW,  defined,  10 

leading  principles  of  American,  11 

object  of,  11 

CRIMINATION.     See  Privilege  op  Witnesses. 

•CRITICISM,  what  not  libelous,  894 

CROSS-EXAMINATION.     See  Witness. 

CUSTOMS  OF  MERCHANTS,  judicial  notice  of,  12 


DAYS  OF  WEEK  AND  MONTH,  judicial  notice  of,  12 

DEAF-MUTE,  as  witness,  289 

-DEATH,  hearsay  evidence  of,  137 

presumptions  as  to,  22,  23,  24 

as  to  time  of,  22,  23 

imminency  of,  effect  on  dying  declarations,  530,  534,  536,  540 

when  causing,  not  homicide,  762 

DECEASED  PERSONS,  libel  of,  882 

entries  by,  72 

declarations  of  as  to  births,  deaths,  etc.,  136 

testimony  of,  345,  380 

DECLARATIONS,  competency,  72 
when  part  of  res  gestm,                                                         122,  124,  126,  127 

of  third  parties  as  to  res  gestm,  328 
previous,  consistent  with  testimony,                                  364,  366,  374,  378 

of  deceased  person  as  to  birth,  etc.,  136 

adversity  of,  to  deceased  or  absent  declarants,  136 
dying.     See  Dying  Declarations. 

as  to  pain,  124 

of  co-conspirators,  901,  905 

of  persons  engaged  In  riot,  127 

of  third  persons  in  presence  of  accused,  500,  501 

charging  jury  as  to,  192,196 

of  accused,  501,  875 

effect  of  arrest  on  admissibility,  500 

of  accused — prosecution  must  use  in  entirety  if  at  all,  778 

contradictory  by  accused,  503 

of  accused  as  evidence  of  insanity,  669 

as  to  forgery,  778 

of  accused  in  exculpation  of  confederate,  501 

DECOY  LETTERS,  as  evidence,  85 

DECOYS.     See  Detectives. 

DELIBERATION.     See  Cooling-time;  Homicide. 

intoxication  as  affecting,  193,  44! 


956  INDEX. 

DELIRIUM  TREMENS.    See  Intoxication.  page. 

DEMONSTRATIVE  EVIDENCE,  by  exhibition  of  material  objects,  63 

compulsory  production  of,  by  accused,  694 

DEPOSITIONS  IN  CRIMINAL  CASES,  chap,  xxxm.,  379,  et  seq. 

right  to  use,  statutory,  378,  396 

right  to  cross-examination,  379,  381,  382,  384 

California  statute,  381,  394 

New  York  statute,  389 

English  rule,  394 

of  a  prisoner,  380 

■weight  and  credibility  of,  396 

when  read  excludes  oral  testimony  of  witness,  396 

DEPUTIES,  judicial  notice  of  not  taken, 

DETECTIVES,  testimony  of, 

participation  in  offenses  by, 

DIRECTION  OP  VERDICT, 

DISCLOSURE,  by  victim  of  rape, 

DISPOSITION,  of  accused,  evidence  of, 

of  assailant  in  relation  to  self-defense, 

DOCUMENTARY  EVIDENCE,  chap,  vi., 
defined, 

California  statute, 
English  rules, 

read  only  during  testimony  of  witness  proving, 
public  documents, 
public  records.     See  Records. 

private  writings  obtained  by  seizure,  58 

memoranda.     See  Memoranda. 

entries  by  persons  since  deceased,  72 

letters.     See  Letters. 
telegrams.     See  Telegrams. 

maps,  charts,  etc.,  62 

spuriousness  shown  by  parol,  62 

in  jury  room,  227 

for  extradition,  933 

DOCUMENTS,  preliminary  inspection  of,  45 

notice  to  produce,  45 

effect  of  refusal  to  produce,  46 

failure  of  accused  to  produce,  58 

forgery  of,  774 

compulsory  production  of  by  accused,  695 

inspection  by  opposite  party,  58 

use  of  to  refresh  memory,  56 

when  copies  admissible,  46 

photographs  of,  151 

on  issue  of  forgery,  152,  153 

DOUBT,  Reasonable.     See  Reasonable  Doubt. 

DRESS,  as  evidence  of  identity,  485 


12 

197,  522 

524,  526 

199,  229, 

233,  238,  239 

816,  825, 

827,  831,  832 

587,  602,  608 

587 

48  et  seq 

48 

53 

58 

58 

49,  50 

INDEX.  957 

PAGE. 

DYING   DECLARATIONS,  chap.  XLir.,  527  et  seq. 

infirmities  of,  as  evidence,  535 

of  victim  of  homicide  alone  admissible,  529  et  seq. 

admitted  on  grounds  of  necessity,  532 

imminency  of  death,  G30,  534,  536,  540 

declarant's  belief  in  future  punishment,  528 

made  by  gestures,  539 

in  favor  of  accused,  537 

impeaching  declarant,  538 

of  opinions,  536 

narratives  of  past  occurrences,  538 

what  may  be  proved  by,  533,  534,  536,  538 

as  to  abortion,  530 


EDITORS,  limitation  respecting  libel,  890 

ELECTION,  between  counts  of  indictment,  401 
EiMBEZZLEMENT. 

Embezzlement,  Robbery  and  Burglary,  chap.  Lin.,  742  et  seq. 

defiued,  742 

distinguished  from  larceny,  742 

proof  of,  under  indictment  for  larceny,  740 

evidence  of  other  fraudulent  acts,  743 

by  agent,  proof  of,  743 

ENORMITY,  of  crime,  as  affecting  proof  of,  8 

ENTRIES,  what  are  original,  97 

by  persons  since  deceased,  72,  97,  102,  104 

ENVELOPE,  included  in  term  "  letter,"  79 

EPILEPSY,  as  evidence  of  insanity,  637 

EVIDENCE,  object  of,  1 

different  effect  of,  in  civil  and  criminal  cases,  7 

definition  of,  3 

judicial  and  extra-judicial,  3 

distinguished  from  proof,  3,  4 

distinguished  from  testimony,  4 

test  of  credibility  of,  5 

difference  between  criminal  and  civil,  1,  2,  8,  133 

definition  and  classification  of,  in  California  Code,  5-7 

best  and  secondary.     See  Best  and  Secondary. 

circumstantial.     See  Circumstantial  Evidence. 

confined  strictl}'  to  issue,  224 

conclusive,  35 

of  deceased  witness  on  former  trial,  345-35G 

of  insane  witness  on  former  trial,  353 
documentary.     Sue  Documentary  Evidence. 

effect  of  enormity  of  crime  on,  8 
fabrication  and  suppression  of,                                            29,  219,  220,  221 

giyen  before  grand  jury,  256,  412 
hearsay.     See  Hearsay  Evidence. 

indecent,  74 


958  INDEX. 

EVIDENCE,  continued.  page. 
afforded  by  indictment.     See  Indictment. 

irrelevant  open  to  contradiction,  71 
of  other  offenses.     See  Other  Offenses. 

positive  and  negative,  228- 
prima  facie.     See  Prima  Facie  Evidence. 

sufficiency  of  a  question  of  law,  232 

striking  out  improper,  414,  420 

ground  of  objection,  should  be  disclosed  25i> 

verdict  against,  240,  242 

EVIDENTIARY  FACT,  defined,  4 
EXAMINATION.     See  Compulsory  Examination. 

EXCEPTIONS,  record  must  show,  258,  259,  261 

to  evidence  must  be  specific,  260 

necessary  to  review  refusal  to  grant  bill  of  particulars,  68 

to  rejection  of  offer  of  proof,  72 

not  strictly  required  in  criminal  cases,  239,  241 

to  evidence,  when  to  be  taken,  258 

waiver  of,  261 

to  error  does  not  compel  reversal,  259 

EXCISE   LICENSE,  burden  of  proof,  42.5- 

EXCLAMATIONS,  as  res  gestce,  124 

EXCLUSION  OF  WITNESSES,  effect  of  violation  of  order,  71 

EXPERT  AND   OPINION  TESTIMONY,  refreshing  memory,        100,  144 

non. expert  opinions,  142 

sanity,  28,  142 

intoxication,  142 

physical  condition,  142 

as  to  blood  stains,  769 

as  to  identity,  481 

reading  from  medical  treatise  to  contradict,  769 

EXTRADITION,  Interstate  Rendition  and  International,  chap. 

lxvi.,  920  et  seq. 

defined,  920 
New  York  statutes  and  rules,                                                  921,  928,  946- 

Federal  statute,  925 
international,                                                                             920,  924,  940 

interstate,  constitutional  provisions,  929 

warrant  for  arrest,  929,  934 

mode  of  capture  of  prisoner  immaterial,  930 

rights  of  party  proceeded  against,  931 

exemption  from  civil  process  in  demanding  state,  932 

conduct  of  proceedings,  932,  934 

authentication  of  documentary  evidence,  933 

trial  for  offense  other  than  extradited  upon,  935 

for  what  offense  extraditable,  939 

evidence  to  authorize  arrest,  941 

habeas  corpus  to  test,  945 


index.  959 

PAGE. 

FABRICATION,  of  evidence,  219,  220' 

FALSEHOOD,  effect  on  credibility  of  witness,  293 

effect  of,  on  rest  of  testimony,  224 

presumption  from,  in  defense,  28,  29,  219 

FALSE  PRETENSES,  chap,  li.,  699  et  seq. 

defined,  699,  701 

indictment  for,  706,  708,  719' 

tests  of,  714 
distinguished  from  larceny,                                               716,  719,  723,  730 

distinguished  from  undue  recommendation,  720 

English  statute,  718 

ability  to  repay  immaterial,  714.  720 

ordinary  prudence  of  complainant,  714,  720 

necessity  of  proving  all  pretenses  alleged,  718 

obtaining  charitable  donations  by,  719 

inducing  performances  of  legal  duty  by,  719 

intent,  a  question  of  fact,  721 

evidence  of  other  instances,  700,  71 1 

made  to  agent,  701 
must  relate  to  past  or  present  fads,                                  703,  706,  708,  710 

relation  to  usual  mode  of  dealing,  705 
necessity  of  passing  of  title  from  one  defrauded,           703,  705,  709,  719 

letters  of  accused,  70G 

declaration  of  intention,  706 

must  be  written  or  spoken,  707 

false  assumption  of  another's  name  or  office,  70? 

intent  to  defraud  must  be  shown,  708,  711,  721 

reliance  upon  to  be  shown,  710,  721 

something  of  value  must  be  obtained  by,  711 

whether  misleading,  question  of  fact,  711 

FAMILY  LIKENESS,  as  evidence  of  parentage  and  identity,  481,  860 

FEES,  when  witness  entitled  to  expenses,  267 

FELONY,  not  synonymous  with  crime,  10 

indictment  for,  405 

FLIGHT,  presumption  from,  29 

FOOTPRINTS,  compulsory  comparison  with  feet  of  accused,  693,  694 

FORGERY,  chap,  lv.,  772  et  seq. 

defined,  772 

New  York  statute,  784 

proof  of  intent  to  defraud,  774 

what  is  making  a  false  document,  774 

what  is  uttering  forged  instrument,  77  fi 

burden  of  proof,  779 

declarations  of  accused,  77s 

evidence  of  other  forgeries,  779 

evidence  of  handwriting,  780 

of  bills,  notes,  etc.,  proof  of,  780 

unauthorized  filling  in  of  check  or  draft,  777 

photograph  of  documents  on  issue  of,  152,  153 


960  INDEX. 

FORGERY,  continued.  page. 

relation  of  uttering  forged  instrument  to,  776 

circumstantial  evidence  sufficient,  784 

FORMER  JEOPARDY  OR  CONVICTION,  Evidence  of,  chap,  xlvi., 

612  et  seq. 

what  is,  612,  616 

necessity  of  pleading,  616 

waiver  of  plea  of,  615 

how  pleaded,  613 

burden  of  proof  of,  615 

how  determined,  614,  615 

identity  of  offense,  614,  615 

in  civil  courts  as  plea  in  courts-martial,  919 

FRAUD,  latitude  in  relevancy  on  issue  of,  77 

GEOGRAPHICAL  FACTS,  judicial  notice  of,  12,  13 

GESTURES,  dying  declaration  made  by,  539 
GOOD  CHARACTER.     See  Character. 

GRAND  JURORS,  as  witnesses  on  trial,  235 

GRAND  JURY,  part  of  court,  399 

control  of  court  over,  399 

minutes  of,  399 

evidence  before,  256,  412 

irregular  organization  of,  204,  254 

powers  and  duty,  411 

what  evidence  adduced  before,  256 

witnesses  before  to  be  sworn,  403 

members  of  as  witnesses  before,  403 

indictment  on  incompetent  evidence  before,  409,  411 

testimony  taken  by,  410,  412 

evidence  of,  proceedings,  410,  411 

disclosure  of  proceedings,  410,  411 

inspection  of  minutes  of,  67,  204 

GROANS,  as  res  gestce,  124 

GUILT,  presumption  of  from  indictment,  403 

charging  jury  as  to,  196 

HABEAS  CORPUS,  to  procure  attendance  of  witness,  274 

to  test  detention  under  warrant  of  extradition,  946 

HABIT,  a  question  of  fact,  142 

HANDWRITING,  proof  of,  chap.  xi. ,  109  et  seq. 

proof  by  comparison,  780 

on  i.ssue  of  forgery,  780 

evidence  of  from  letter-press  copies,  82 

HEARSAY  EVIDENCE,  chap,  xiv.,  133  et  seq. 

exceptions  to  general  rule  rejecting,  135 

of  pedigree  and  death,  137 
See  Dying  Declarations. 

HIGH  CRIMES  AND  MISDEMEANORS,  defined,  11 


INDEX.  061 

PAGE. 

HISTORICAL  BOOKS,  as  evidence,  62 

HISTORY  OF  ACCUSED,  on  issue  of  sanity,  670 

HOMICIDE,  Texas  statute,  760 
death  to  be  proved,                                                                     465,  463,  477 

■when  causing  death  is  not,  762 

under  allegation  of  murder  any  degree  of,  provable,  404 

intent  to  kill,  essence  of  felonious,  764 

premeditation  and  deliberation,  764 

presumption  from  killing,  262 

motive  in  relation  to,  766 

provocation,  effect  and  definition,  593,  758 

evidence  of  character  of  deceased,  765 

eifect  of  passion,  593 

burden  of  proof  when  killing  admitted,  190 

prosecution  should  call  all  witnesses  of  commission,  124 

insanity  as  affecting  degree  of,  757 

dying  declarations  as  evidence  of,  529 

evidence  of  blood  stains,  767 

when  justifiable,  75S,  762 

justification,  burden  of  proof,  479,  765 

in  self-defense,  762 

how  death  may  be  accomplished,  765 

by  vicious  animal,  764 

by  poisoning,  evidence  of  experts,  765 

by  poisoning,  evidence  of,  766 
See  Premeditation  and  Deliberation. 
See  MuRDEa  and  Manslaughter. 
HUSBAND  AND*  WIFE. 

marital  coercion  as  excuse  for  crime,  631 

indictment  of  husband  on  wife's  testimony,  410 

as  witnesses,  230,  406 

as  witness  against  the  other,  412 

as  witnesses  against  each  other  before  grand  jury,  410 

testimony  of  wife  as  to  excessive  intercourse,  75 
See  Adultery,  Bigamy,  Incest. 

IDEM  SONANS,  doctrine  of,                                                    .  170  et  seq. 

IDENTIFICATION,  by  photographs,  150 

IDENTITY,  Evidence  of,  chap,  xxxix.,  480  et  seq. 

perplexities  of,  486 

inference  of,  481 

of  accused  and  offender,  proof  of,  501 

of  offense  in  plea  of  former  jeopardy,  614,  615 

of  stolen  property,  732 

compulsory  examination  of  person  to  show,  690,  694 

non-expert  testimony  of,  481 

dress  as  evidence  of,  485 

family  likeness  as  evidence  of,  4S1 

voice  as  evidence  of,  482 

61 


962  INDEX. 

PAGE. 

ILLEGITIMACY,  evidence  of  parents,  22 

letters  of  mother  as  evidence  of,  85 
IMPEACHMENT.     See  Witness. 

IMPULSE,  irresistible,  as  excuse  for  crime,  642,  644,  655,  600,  671,  673 

INCEST,  chap,  lix.,  838  et  seq. 

defined,  838 

assent  of  both  parties,  necessity  of,  83S 

distinguished  from  rape,  838,  839 

marriage,  proof  of,  840 

consanguinity,  evidence  of,  841 

illegitimate  relationship  of  parties,  841 

previous  lasciviousness,  842 

subsequent  lasciviousness,  842 

wife  as  witness  against  husband,  846 

INDECENCY,  effect  on  admissibility  of  evidence,  74 

INDEMNITY  AGAINST  PROSECUTION,  effect  on  privilege  of  witness,  307 

INDICTMENT,  Evidence  Afforded  by  the,  chap,  xxxrv,  397  et  seq. 

defined,  402 

rule  for  framing,  403 

disjunctive  and  conjunctive  averments,  404 

necessary  allegations,  397,  400,  404 

allegations  of  time  and  place,  407 

presumption  of  guilt  from,  403 

election  between  counts  of,  401 

not  vitiated  by  defective  count,  404 

joinder  of  offenses,  218 

construction  in  favor  of  accused  adopted,  885 

common  law  strictness,  405 

what  allegations  must  be  proved,  400 

immaterial  variance  from  proof,  400 

founded  on  incompetent  evidence,  403,  409,  412 

founded  on  evidence  of  accused,  410 

founded  on  evidence  of  wife  of  accused,  410 

for  felony,  405 

indorsement  of  witnesses  on,  40G 

sufficiency  of,  not  assailable  by  objection  to  evidence,  259 

plea  in  abatement,  399,  413 

motion  to  quash,  399,  413 

INDORSEMENT,  of  names  of  witnesses  on  indictment,  effect  of,  407 

INFANCY,  as  excuse  for  crime,  628 

relation  to  rape,  832 

effect  on  competency  of  witness,  289 

INFANTS,  evidence  of  age  of,  26,  27 

presumption  as  to  criminality  when  under  12  years  of  age,  26 

INFERENCES,  of  identity,  481 

INFORMATIONS,  to  be  taken  in  presence  of  accused,  379 

INNOCENCE,  presumption  of,  19,  21 

duration  of  presumption  of,  20,  26 

INSANE  WITNESS,  testimony  of  on  former  trial,  353 


INDEX.  963 

PAGE. 

INSANITY,  Evidence  of,  chap,  xlvih.,  633  et  seq. 

when  sufficiently  proved  or  disproved,  634 

prejudice  of  juror  against,  as  defense,  200 

French  and  German  codes,  601 

effect  on  competency  of  witness,  286 

test  of,  041  et  seq. 
the  "  right  and  wrong  "  test,  641,  659,  673,  678 
a  question  of  fact,  141,  642,  645,  658 
burden  of  proof,                                          426,  636,  637,  659,  663,  673,  679 

presumption  of  continuance,  28,  641,  678 

doubt  as  to,  141 

epileptic,  637 

proof  of  same  in  civil  and  criminal  cases,  536 

great  latitude  in  evidence  of,  637 

opinion  of  nonexpert,  28,  142 

of  ancestors,  637 

history  of  accused,  670 

conduct  of  accused  subsequent  to  offense,  680 

declarations  of  accused  as  evidence  of,  669 

barbarous  manner  of  homicide  as  evidence  of,  764 

resulting  from  iutoxication,  623,  627 

delirium  tremens  as  evidence  of,  642 
irresistible  impulse,                                              642,  644,  655,  660,  671,  673 

monomania,  668 

moral,  071,  676 

relation  to  degree  of  murder,  757 

views  of  medical  experts,  656 

review  of  state  decisions,  073 

INSPECTION,  of  minutes  of  grand  jury,  67,  204 

of  documents  by  opponent,  45,  OS,  102 

INSTRUCTIONS.     See  Charging  the  Jury. 

INSURANCE,  excessive  as  motive  for  arson,  445 

INTENT,  criminal,  necessity  of,  455,  457 

criminal,  how  proved,  449,  451,  458 

presumptions  as  to,  450,  463 

burden  of  proof,  463 

as  element  of  conspiracy,  904 

of  false  pretenses,             ,  708,  711,  721 

of  forgery,  771 

of  homicide,  764 

of  libel,  893 

of  robbery,  745 

testimony  of  accused  as  to,  452,  893 

admission  of  accused  as  to,  463,  706 

other  similar  offenses  as  proof  of,  459,  461,  713,  735,  743 

intoxication  as  affecting,  621,  623,  624 

time  as  element  of,  456 

INTEREST,  presumption  of  agreement  to  pay,  17 

INTERPRETER,  right  to  have,  378 

impeachment  of,  378 


964  INDEX. 

PAGE. 

INTOXICATING  LIQUORS,  license  to  sell,  burden  of  proof,  425 

use  of  by  jurors,  253 

INTOXICATION,  voluntary  no  excuse  for  crime,  620 

evidence  of,  as  affecting  degree  of  crime,  621,  623,  624 

as  affecting  intent;  621,  623,  624 

New  York  statute,  623 

Utah  statute,  624 

opinions  as  to,  142 

as  affecting  malice,  motive,  443,  626,  627 

as  bearing  upon  premeditation  and  deliberation,  193,  443 

confessions  under,  498 

effect  on  competency  of  witness,  287 

of  witness  as  ground  for  continuance,  288 

resulting  in  insanity,  623,  627 

delirium  tremens  as  evidence  of  insanity,  642 

INVITED   ERROR,  as  ground  for  new  trial  249 

IRRELEVANT  EVIDENCE,  open  to  contradiction,  71 


JEOPARDY.     See  Former  Jeopardy. 

JOINDER,  of  offenses  in  indictment,  218 

JUDGE,  may  be  witness,  276 

questioning  of  accused  by,  247,  352 

JUDGE  ADVOCATE,  functions  of  in  courts-martial,  914 

counsel  to  assist,  915 

JUDICIAL  NOTICE,  chap,  n.,  12  et  seq- 

renders  evidence  unnecessary,  13 

under  Oregon  statutes,  13 

general  range  of,  12 

of  facts  of  universal  notoriety,  13 

of  geographical  facts,  12,  13 

of  laws  of  nature,  12 

use  of  documents  by  court,  13 

of  customs  of  merchants,  12 

of  days  of  week  and  month,  12 

of  public  officers,  12 

of  deputies,  12 

of  meaning  of  language,  12 

of  notarial  seals,  12 

of  ports,  12 

of  tide-waters,  12 

JUROR,  test  of  competency,  201 

effect  of  prejudice  against  defense  of  insanity  on  competency,  200 

disqualification  of,  as  ground  for  new  trial,  251 

as  witnesses,  276 

testimony  of  grand  jurors,  412 
Duty  of  jury  in  weighing  evidence,  chap,  xxvi.,                    223  et  seq. 

common  sense  as  guide  of,  192 

duty  to  reconcile  conflicting  evidence,  226 

as  judges  of  the  law  and  the  fact,  139,  140 


PAGE. 

225 

140, 

14:3 

189 

36 

227 

227 

252 

227 

227 

253 

251, 

253 

206, 

276 

206 

200  ct 

seq. 

229 

479, 

765 

758, 

(762 

INDEX.  965 

JUROR,  continued.  • 

right  to  discredit  testimony, 

must  take  law  from  court, 

disregarding  charge  of  court, 

disregarding  prima  facie  evidence, 

possession  of  documents  during  deliberations, 

memoranda  by, 

access  to  law  books, 

return  into  court  for  information, 

improper  communication  with, 

separation  of  before  rendition  of  verdict, 

misconduct  of  as  ground  for  new  trial, 

as  witnesses  to  prove  misconduct  of  jury, 

affidavits  of  as  to  verdict, 
Jury,  Prejudical,  chap,  xxrv., 

submission  of  case  to  on  scintilla  of  evidence, 
See  Charging  the  Jury. 
JUSTIFICATION  OF  HOMICIDE,  burden  of  proof, 

what  is, 

KNOWLEDGE,  guilty,  how  proved,  452 


LANGUAGE,  judicial  notice  of  meaning  of,  12 

LARCENY,  chap,  lit.,  722  et  seq. 

defined,  722 

felonious  intent  must  be  shown,  724 

includes  trespass,  729 

necessity  of  possession  by  complainant,  730 

distinguished  from  embezzlement,  742 

from  false  pretenses,  716,  719,  723,  730 

money,  description  of  in  indictment,  732 

description  of  property  in  indictment,  738,  739 

what  evidence  sustains  indictment  for,  739 

necessity  and  mode  of  proving  corpus  delicti,  730 

identity  of  property,  732 

necessity  of  proving  name  of  person  robbed,  738 

effect  of  voluntarily  parting  with  possession,  735,  738 

necessity  of  proof  of  value,  736 

possession  of  stolen  property  as  evidence  of,  733 

false  denial  of  possession  of  stolen  goods,  194 

proof  of  similar  offenses,  735 

res  gestm  attending,  131,  132 

of  lost  goods,  740 

committed  without  the  state,  740 

LAW,  proof  of,  55 

LAW   BOOKS,  access  of  jurors  to,  252 

LAWS  OF  NATURE,  judicial  notice  of,  12 

LEADING  QUESTIONS,  when  allowed,  320,  322,  323 


966  INDEX. 

PAGE. 

LEGISLATIVE  JOURNALS,  as  evidence,  56 

LEGISLATIVE  RECORDS,  as  evidence,  56 

postmark  as  evidence,  79 

genuineness,  how  shown,  83,  85 

when  part  of,  only  admissible,  83 

unanswered,  when  admissible  against  addressee,  84 

failure  to  answer  as  admission,  84 

as  evidence  in  behalf  of  writer,  86 

effect  of  possession  of  by  addressee,  85 

as  part  of  res  gestce,  80 

presumption  from  mailing,  79,  82,  94 
secondary  evidence  of,                                                                80,  83,  85,  86 

letter-press  copies,  80,  81 

extract  from  lost,  84 

admissibility  of  reply,  83,  84,  87 

as  showing  probable  cause  for  prosecution,  86 

showing  similar  offenses,  86 

showing  false  pretenses,  706 

decoy,  85 

of  member  of  firm,  85 

of  bank  officer,  85 

principal  and  agent,  86 

of  mother  of  illegitimate  child,  85 

LEGISLATURE,  control  of,  over  presumptions,  38 

LEGITIMACY,  presumption  of,  21 
See  Illegitimacy. 

LETTER-PRESS  COPIES,  as  evidence  of  handwriting,  82 

as  secondary  evidence,  80,  81 

LETTERS,  chap.  vm. ,  79  et  'seg. 

term  includes  envelope,  79 

LIBEL,  Criminal,  chap,  lxiii.,  881  et  seq. 

defined,  881,  885 

of  deceased  persons,  882 

retraction  or  apology,  effect  of,  882 

New  York  statute,  882,  896 

publication  of,  defined,  883 

proof  of,  883 

■what  indictment  must  show,  884 

repetition  as  showing  motive,  886 

direct  testimony  as  to  application  to  prosecutor,  886 
malice,  proof  of,                                                                          £83,  892,  896 

privileged  communications,  889,  895 

intent  as  an  element,  893 

testimony  of  accused  as  to  intent,  893 

fair  criticism  allowed,  894 

editors  and  reporters,  New  York  statute,  896 

application  of  ambiguous  language,  897 

examples  of,  897 

damages  for,  887 

LICENSE  EXCISE,  burden  of  proof,  425 


INDEX.  967 

PAGE. 

LIFE,  presumption  of  continuance  of,  800,  803 

LIKENESS,  as  evidence  of  parentage,  481,  860 

LOST  GOODS,  larceny  of,  740 

LOST  LETTER,  extract  from,  84 

LUNATIC,  competency  of,  as  witness,  286 


MAILING  OF  LETTER,  presumption  from,  79,  82,  94 

MALICE,  denned,  441 

express  or  implied,  442 

burden  of  proof  and  presumption,  443 

presumption  of,  from  homicide,  262 

how  proved,  442 

threats  as  evidence  of,  442 

intoxication  as  affecting,  443,  626,  627 

relation  to  libel,  888,  892,  896 

MALICIOUS  PROSECUTION,  letters  to  show  probable  cause,  86 

MAPS,  admissibility,  62 

MARRIAGE,  effect  on  antenuptial  issue,  858,  862 

proof  of  incestuous,  840 

of  prior,  in  prosecutions  for  bigamy,  799,  801,  804,  811 

promise  of,  relation  to  seduction,  869,  873,  877,  879,  880 

MARTIAL  LAW,  nature  of,  909 

MATERIAL  OBJECTS,  as  evidence,  63 

MEANING  OF  VERNACULAR  LANGUAGE,  judicial  notice  of,  12 

MEDICAL  TREATISE,  reading  from,  to  contradict  expert,  769 

MEMORANDA,  in  Evidence,  chap,  x.,  90  ei  scq. 

when  must  have  been  made,  96,  98,  104,  105,  107 

in  whose  handwriting,  101,  107 

what  entries  are  original,  97 

when  inadmissible,  100 

by  person  since  deceased,  72,  97,  102,  104 

in  aid  of  oral  testimony,  96,  98,  99,  100 

refreshing  memory  by,  104 

inspection  of  by  opposite  party,  45,  58,  102 

cross-examination  as  to,  102,103 

copies  of,  101 

MERCHANTS,  customs  of,  judicial  notice  of,  12 

MICROSCOPIC  EXAMINATION,  of  bloodstains,  769 

MILITARY  LAW.     See  Courts-iiiaktial. 

MINUTES  OF  GRAND  JURY,  copy  of,  07,  204 

MISDEMEANOR,  distinguished  from  crime,  10 

MONEY,  description  in  indictment  for  larceny,  732 

MONOMANIA,  relation  to  sanity,  668 

MORAL  CERTAINTY,  denned,  435 

MORAL  INSANITY,  defined,  671    676 

MOTIVE,  denned.  444,  445 

proof  of,  447 

necessity  of,  442 


968  INDEX. 

MOTIVE,  continued.  page 

adequacy  of,  446 

effect  of,  upon  presumptions,  21 

collateral  facts  in  relation  to,  446 

evidence  showing,  relevant,  71 

as  element  of  homicide,  766 

for  arson  excessive  insurance,  445 

MURDER  AND  MANSLAUGHTER,  chap,  liv.,  754  et  seg. 

distinguished,  754 

degrees  of,  756 

proof  of,  when  sufficient,  771 

burden  of  proof  when  homicide  admitted,  190 
See  Homicide. 


NAME,  variance  in,  167,  171  et  seg. 

false  assumption  of  another's,  707 

NATURAL  CONSEQUENCES,  presumed,  30 

NEGATIVE,  evidence,  228 

proving  a,  229 

burden  of  proof,  426 

evidence  of  character,  608 

NEW  TRIAL,  Evidence  on  Application  for,  chap,  xxvn.,  234  et  seq 

New  York  statute,  236 

conflict  in  evidence,  238,  240,  243 

insufficiency  of  evidence,  238,  243,  247 

admission  of  irrelevant  evidence  on  assurance  of  counsel,  414 

admission  of  improper  evidence,  244,  249,  418 

technical  errors,  250 

improper  evidence  not  objected  to,  248 

newly  discovered  evidence,  243 

disqualification  of  juror,  251 

misconduct  of  jury,  251,  253 

invited  error,  249 

questioning  of  accused  by  court,  247,  352 

statements  of  prosecuting  attorney,  245 

NON-ACCESS,  relation  to  bastardy,  858 

NON-RESIDENT  WITNESS,  previous  testimony  of,  353,  356 

signature  of,  as  subscribing  witness,  354 

NORTHAMPTON  TABLES,  as  evidence,  149 

NOTARIAL  SEALS,  judicial  notice  of,  12 

NOTICE  TO  PRODUCE  DOCUMENTS,  necessity  of,  45,  46,  80,  81 

effect  of,  45,  46 

English  rules,  61 

telegrams,  94 


OBJECTION,  to  evidence,  ground  of  to  be  disclosed,  259 

OFFER  TO  PROVE,  exception  to  rejection  of,  72 

OFFICER,  falsely  assuming  to  be,  707 


INDEX. 

OPENING  AND  CLOSING  THE  CASE,  chap,  xxn., 

object  of  opening, 

limitations  of  opening, 

interruption  by  adversary, 
by  court, 

limitations  of  closing, 

reversible  error, 
OPINIONS.     See  Expert  and  Opinion  Testimony. 
ORDER  OF  PROOF,  chap,  xvm., 

discretionary  with  court, 

assurance  of  counsel  as  to  relevancy, 

limitations  on  rebuttal, 

opening  case  after  resting, 
ORIGINALS,  of  telegrams, 

ORIGINATION  OF  EVIDENCE,  by  courts-martial, 
OTHER  OFFENSES,  Evidence  of,  chap,  xxv., 

evidence  of,  cautiously  received, 

connection  with  offense  charged, 

evidence  of,  admissible  if  also  pertinent  to  issue, 

as  showing  intent,  459,  461, 

trial  of  extradited  prisoner  for, 

limitations  as  to  misdemeanors, 

of  false  pretenses, 

of  forgery, 
OVERT  ACT,  as  aggravation  of  conspiracy, 


PAIN,  declarations  as  to, 

PARDON,  right  of  accomplice  to  for  testifying, 
of  one  convicted  by  perjury, 

PARENTAGE,  family  likeness  as  evidence  of, 

PARENTS,  testimony  of,  as  to  legitimacy  of  children, 

PARO Li  EVIDENCE,  chap,  xn., 
under  California  Code, 
must  be  direct, 
of  spuriousness  of  writing, 
when  copy  of  document  available, 

PARTNER,  letters  of, 

PASSION,  effect  on  homicide, 

PEDIGREE,  hearsay  evidence  of, 

PENETRATION,  relation  to  rape. 

PERJURY,  chap,  lvi., 
defined, 

number  of  witnesses  and  extent  of  proof  necessary, 
necessity  of  proof  that  accused  was  on  oath, 
committed  on  impeachment  of  witnesses, 
curing  conviction  secured  by, 
in  testimony  affecting  credit  of  accused, 
materiality  of  testimony  tainted  with,  is  for  jury, 

PERSON,  compulsory  examination  of, 


969 

PAGE. 

181  et 

seq. 

181 

181 

182 

182 

183, 

185 

184 

155  ei 

seq 

155,  156, 

158 

159 

155, 

157 

157, 

158 

89,  92 

914 

207  et 

«  q. 

218 

208,  326, 

608 

75«, 

216 

713,  735, 

743 

936 

217 

70, 

711 

779 

905 

124 

519 

793 

481, 

22 

118  ei 

seq. 

119 

121 

62 

80 

85 

593 

137 

816, 

sn 

788  et 

Si '/. 

788 

791,  794, 

795 

792 

793 

793 

7!)! 

795 

690  ti 

Stq. 

970 


INDEX. 


PHOTOGRAPHY,  in  Evidence,  chap,  xvii., 

qualification  of, 

accuracy  of,  may  be  questioned, 

of  documents, 

of  signatures  magnified, 

identification  by, 
PHYSICAL  CONDITION,  opinions  as  to, 
'  PHYSICIAN,  privilege  as  witness, 
PLACE,  allegations  and  proof  of, 
PLEA,  in  abatement, 

of  not  guilty,  what  provable  under, 

of  former  jeopardy, 
POISONING,  homicide  by, 
PORTS,  judicial  notice  of, 

POSITIVE  AND  NEGATIVE  EVIDENCE,  defined, 
POSSESSION,  relation  to  larceny,  194,  730, 

relation  to  robbery, 
POST-MARK,  as  evidence, 
PRECEDENT  ACTS,  evidence  of, 

PREGNANCY,  compulsory  examination  of  person  to  discover, 
PRELIMINARY  EXAMINATION,  testimony  of  accused  on, 
PRExMEDITATION,  defined, 

time  necessary  for, 

wide  range  of  evidence  as  to, 

intoxication  as  affecting, 
PREMISES,  viewing  the.    See  Viewing  the  Premises 
PRESUMPTIONS,  chap,  m., 

defined, 

natural, 

legal  or  artificial, 

difference  in  civil  and  criminal  cases, 

under  California  Code, 

legislative  control  of, 

as  to  accused  under  seven  years  of  age, 

of  agreement  to  pay  interest, 

of  arrival  of  letter, 

relation  to  burden  of  proof, 

as  to  chastity  of  female, 
of  prosecutrix  for  rape, 

of  competency  of  witness, 

conclusiveness  of, 

from  conduct  of  accused, 

conflicting, 

of  continuance. 

of  continuance  of  insanity, 

of  continuance  of  life, 

as  to  corpus  delicti, 

of  credibility  of  witness, 

as  to  death, 

as  to  time  of, 


73! 


PARE. 

150  ct  seq. 

153,  154 

151 

151,  152 

153 

150 

142 

317 

407 

399,  413 

142 

613,  016 

765 

12 

228 

I,  735,  738 

746 

79 

73 

690,  691 

357 

447, 764 

456 

448 

193,  443 

15  et  seq. 

15,  16 

18 

18 

16 

30 

38 

26 

17 

79,  83 

422 

854,  876 

21 

275 

28 

28 

21 

27 

641,678 

800,  303 

17 

21 

22,  23,  24 

22,  23 


INDEX.  971 

PRESUMPTIONS,  continued.  page. 

of  fact,  16,  17,  18,  19 

from  failure  to  adduce  evidence,  220 

of  accused  to  testify,  219 

to  prove  good  character,  599 

from  falsehood  in  defense,  28,  29,  219 

from  flight,  29 

of  guilt  from  indictment,  403 

homicide,  262 

of  innocence,  19 

duration  of,  20,  26 

effect  of  prima  facie  evidence  on,  87 

as  to  intent,  450,  463 

of  law,  17 

of  legitimacy,  21 

legitimacy  of  child  born  in  wedlock,  858,  860 

from  mailing  of  letters,  79,  82,  94 

of  malice,  443 

effect  of  motive  on,  21 

of  natural  consequences  of  act,  30 

positive  and  negative  testimony  (        228 

as  to  possession  of  stolen  property,  20,  733,  750,  752 

as  to  rape  by  infant,  832 

of  sanity  and  responsibility,  25 

from  silence  of  accused,  28,  30 

as  to  suicide,  24 

suppression  of  evidence,  29,  219,  220,  221 

of  survivorship,  22 

from  sending  of  telegram,  94 

of  unseaworthiness  of  vessel,  17 

as  to  voluntariness.  503 

as  to  voluntariness  of  confession,  491,  490 

PRIEST,  as  witness,  281,  318 

PRIMA  FACIE  EVIDENCE,  chap,  iv.,  35  et  seg. 

defined,  35 

relation  to  burden  of  proof,  427,  428 

legislative  control  over,  38 

statutory  regulation  of,  455 

effect  on  presumption  of  innocence,  37 

jury  cannot  disregard,  36 

PRINCIPAL  AND  ACCESSORY,  defined,  11 

PRINCIPAL  AND  AGENT,  agent,  86 

PRISONERS,  deposition  of,  380 

PRIVILEGE, of  accomplice  when  testifying,  517,  521 

against  production  of  keys,  tools,  documents,  etc.,  694,  G95 

of  accused,  against  examination  of  person,  690 

PRIVILEGE  OP  WITNESSES,  chap,  xxx.,  296  et  seq. 

criminating  questions,  296  et  seg. 

effect  of  indemnity  against  prosecution,  307 

waiver  of,  296 

as  to  professional  communications,  299,  31  i 


972  INDEX. 

PRIVILEGE  OF   WITNESSES,  continued.  page. 

of  attorneys,  314 

of  physicians,  317 

of  clergyman,  281,  318 

question  for  court,  297  et  seq^ 

PRIVILEGED  COMMUNICATIONS,  relation  to  libel,  889.  895 

PROBABLE  CAUSE,  letters  as  showing,  86 

PROFESSIONAL  COMMUNICATIONS,  privilege  of  witness  as  to,  299,  314 

PROOF,  defined,  3,  4 

California  Code  definition,  5 

distinguished  from  evidence,  3-4 

PROSECUTING  ATTORNEY,  as  witness,  277 

PROSECUTION,  must  show  whole  transaction,  407 

should  call  all  witnesses  of  offense,  124,  131,  407 

PROVOCATION,  effect  on  homicide,  593,  758 

PUBLIC  DOCUMENTS,  as  evidence,  49,  50 

PUBLIC  OFFICER,  judicial  notice  of,  12 

as  witness  concerning  confidential  disclosures,  281 

PUBLIC  POLICY,  incompetence  of  spouse  to  prove  non-access,  75 

PUBLIC  RECORDS.     See  Records. 

PUBLICATION,  of  a  libel,  defined,  883 


QUESTIONS  OF  LAW  AND  FACT,  chap,  xv.,  138 

charging  jury  on  facts,  187,  188,  190,  195 

competency  of  witness,  276,  286 

corpus  delicti,  37 

corroboration  of  accomplices,  511 

credibility  of,  522 

credibility  of  witness,  292 

criminal  responsibility  of  infant,  631 
direction  of  verdict  by  court,                             140,  199,  229,  233,  238,  239 

existence  of  habits,  142 

whether  false  pretenses  misleading,  711 

intent  in  false  pretenses,  721 

foundation  for  secondary  evidence,  42 
insanity,                                                                                141,  612,  645,  658 

jury  as  judges  of  the  law  and  the  fact,  139,  140 

materiality  of  testimony  tainted  with  perjury,  794 

plea  of  not  guilty  raises  question  of  fact,  143 

presumption  from  failure  to  produce  evidence,  30 

proof  of  fact  exclusively  for  jury,  141 

presumptions,  17 

privilege  of  witness,  297 

relevancy  of  evidence,  67,  74 

"scintilla"  of  evidence,  229- 

self-criminating  testimony,  297 

sufficiency  of  evidence,  232 

voluntariness  of  confession,  491,  496 

what  is  reasonable  cooling  time,  593 


INDEX.  973 

PAGE. 

RAPE,  chap  i/vm.,  812  et  seq. 

defined,  813 

distinguished  from  seduction,  874 

penetration,  evidence  of,  817 

extent  of,  necessary,  816 

presumption  from  infancy  of  accused,  832 

resistance,  necessity  for  and  extent  of  by  victim,  812,  816,  831 

consent  procured  by  fraud,  836 

corroboration  of  prosecutrix,  necessity  for,  826,  827,  830 
disclosure  by  victim,                                                  816,  825,  827,  831,  832 

previous  attempts,  836,  851 

character  of  victim,  596,  605 

evidence  of  chastity  of  prosecutrix,  and  reputation  for,  818 

presumption  as  to  chastity  of  prosecutrix,  21 

REASONABLE  DOUBT,  chap,  xxxvi.,  431  et  seq. 

defined,  422,  431,  440 

doctrine  of,  when  applicable,  436 

relation  to  moral  certainty,  435 

REBUTTAL,  evidence  in,  155.  157,  326 

RECOGNIZANCE,  for  attendance  of  witnesa,  264,  265 

RECOMMENDATION,  undue,  distinguished  from  false  pretenses,  720 

RECORDS,  California  statute,  53 

New  York  statute,  54 

of  U.  S.  courts,  55 

conclusiveness  of  judicial,  62 

examined  copy,  51 ,  52 

certified  copy,  51.  .r;2 

proceedings  of  legislature,  35 

REFRESHING  MEMORY,  by  reference  to  collateral  fact3,  330 

by  memoranda,  56,  104 

use  of  treatises  by  expert,  100,  144 

RELEVANCY,  chap,  vn.,  64  et  seq. 

defined,  04,  77 

determined  by  issues,  66,  69,  224 

attributes  of,  70 

a  question  of  law,  67,  74 

conclusive  proof  of  fact  determining  not  required,  73 

assurance  of  counsel  as  to,  159,  414 

preliminary  examination  to  ascertain,  73 

must  be  disclosed,  72,  320,  323 

irrelevant  evidence  open  to  contradiction,  71 

of  evidence  showing  motive,  71 

great  latitude  on  issue  of  fraud,  77 

effect  of  bill  of  particulars,  67 

striking  out  irrelevant  evidence,  41 1,  120 
RENDITION.     See  Extradition. 

REPETITION,  of  libel  as  showing  motive,  886 

REPLIES  TO  LETTERS,  as  evidence,  83.  84,  87 

REPORTERS,  limitations  as  to  libel,  896 


!>7i  INDEX. 

REPUTATION,  of  victim  of  rape  for  chastity, 

See  Character. 
REQUESTS  TO  CHARGE,  right  to, 
RES  AD  JUDICATA,  judgment  of  courts-martial  as, 
RESEMBLxVNCE,  as  evidence  of  parentage  or  identity, 

as  evidence  in  bastardy  cases, 
RES  GESTAE,  chap,  xiit., 

doctrine  defined, 

constituents  of, 

conflict  of  authority  as  to  what  constitutes, 

immaterial  by  -which  party  proved, 

whole  of,  should  be  shown, 

conduct  of  accused, 

cries  of  bystanders, 

when  declaration  part  of, 

declarations  of  third  parties  as  to, 

exclamations,  groans,  screams, 

attending  larceny, 

letters  as, 
RESPONSIBILITY,  presumption  of, 
RETRACTION,  effect  on  libel, 
RIGHT  AND  WRONG  TEST,  of  insanity, 
RIOT,  declarations  of  persons  engaged  in, 
ROBBERY,  Embezzlement,  and  Burglary,  chap.  Lin. 

defined, 

proof  of, 

felonious  intent, 

necessity  of  violence  and  fear, 

of  ownership  and  possession  of  property, 

possession  of  stolen  property, 

description  of  stolen  property, 


SANITY,  presumption  of, 
opinions  as  to, 

SCIENTIFIC  BOOKS,  in  Evidence,  chap,  xvi., 
reading  to  jury, 
use  to  discredit  expert, 
expert  may  use  to  refresh  memory, 

SCINTILLA  of  evidence,  doctrine  of, 

SECONDARY  EVIDENCE.     See  Best  and  Secondary  Evidence. 

SEDUCTION  UNDER  PROMISE  OF  MARRIAGE,  chap,  lxil,     867  et  seq. 
defined,  867 

distinguished  from  rape,  874 

burden  of  proof,  876 

materiality  of  time,  879 

proof  that  victim  was  unmarried,  875 

promise  of  marriage,  necessity  of,  873 

essentials  of  promise  to  marry,  809,  S77,  879,  880 

circumstancial  evidence,  868,  873,  877 

refusal  to  marry,  evidence  of,  871,  880 


PAGE. 

818 

197 

920 

481 

860 

122  et  seq. 

123 

126,  12S,  131 

125,  128 

123 

123,  130 

127 

126,  127 

122, 

125,  126,  127 

328 

124 

131,  U2 

SO 

25 

882 

Gil, 

659,  673,  678 

127 

742  et  seq. 

744 

744 

745 

745,  747 

746 

747 

748 

25 

14o 

144  et  seq. 

144, 

146,  148,  149 

145,  147,  148 

100 

229,  233 

INDEX.  975 

SEDUCTION   UNDER  PROMISE   OP  MARRIAGE,  continued.        page. 

subsequent  fornication  with  others  than  accused,  872 

chastity  of  complainant,  606,  867,  870,  875,  880 

corroboration  of  prosecutrix,  867,  S68,  872,  873,  877,  878 

declarations  of  accused,  875 

SEIZURE,  private  writing  obtained  by,  as  evidence,  58 

SELF-DEFENSE,  Evidence  op,  chap,  xliv.,  567  et  seq. 

when  allowed,  567,  570,  573 

extent  of  force  permissible,  568,  571 

rests  upon  necessity,  570,  571 

extent  of  retreat,  572 

when  heroic  means  permissible,  574,  585,  762 

burden  of  proof,  585 

communications  to  accused  by  third  parties,  585 

quarrelsome  disposition  of  assailant,  5«7 

character  of  assailant,  587 

evidence  of  violent  temper  of  accused,  587 

threats  of  combatants,  575,  586,  589,  594 

SENTENCE,  of  courts-martial,  approval  by  executive,  91'.* 

SEXUAL  INTERCOURSE,  wife's  evidence  of  excessive,  75 

SIGNATURES,  magnified  photographs  of,  153 

SILENCE,  presumption  from,  28,  30 

of  accused  at  declarations  of  others  in  his  presence,  500,  501 

SIMILAR  OFFENSES,  evidence  of  in  prosecutions  for  sexual  crimes, 

813,  851,  872,  874,  87T 

as  showing  intent,  459,  461,  735,  743 

letters  of  accused  showiDg,  b6 

SIMILAR  TRANSACTIONS,  evidence  of,  72,  713 

SOMNOLENCY,  as  evidence  of  insanity,  637 

SPURIOUSNESS,  of  document,  parol  evidence  of,  62 
SPY.     See  Detectives. 

STATE'S  EVIDENCE,  immunity  for  turning,  505,  518 

STATUTE,  of  sister  state,  parol  evidence  of,  56 

STATUTES,  printed  books  as  evidence  of,  56 

domestic,  New  York  statute,  54 

of  state  in  Federal  courts,  50 

of  foreign  states  to  be  pleaded  and  proved,  53 

construction  of,  929 

implication  of  criminal  penalty,  10 

STOLEN  PROPERTY,  presumption  as  to  possession  of,  20,  723,  733,  747,  752 

identity  of,  732 

false  denial  of  possession  of,  194 

STRIKING   OUT  evidence,  motion  for,  414,  420 

SUBPCENA,  defined,  263 

issued  by  clerk,  264 

constitutional  right  fo,  264 

United  States  statute,  265 

disobedience  of,  261 

duces  tecum,  263 


976  INDEX. 

TAGE. 

SUFFICIENCY,  of  evidence  a  question  of  law,  232 

SUICIDE,  presumption  as  to,  24 

SUPPRESSION,  of  evidence,  29,  219,  220,  221 

SURPRISE,  ground  for  impeaching  party's  own  witness,  372 

SURVIVORSHIP,  presumption  of,  22 


TECHNICAL  ERRORS,  disregarded,  250 

TELEGRAMS,  chap.  ix„  88  et  seq. 

presumption  from  sending,  88,  94 

authentication,  90,  91,  92 

notice  to  produce,  94 

secondary  evidence  of,  89 

which  is  original,  89,  92 

answers  to,  89 

TELEPHONE,  communications  by,  483 

identification  of  speaker  by,  483 

TESTIMONY,  distinguished  from  evidence,  4 

THREATS,  of  combatants  in  relation  to  self-defense,  575,  586,  589,  594 

as  evidence  of  malice,  442 

TIDE   WATERS,  judicial  notice  of,  12 

TIME,  allegations  and  proof  of,  407 

as  element  of  criminal  intent,  456 

materiality  in  seduction,  879 

variance  as  to,  167 

of  death,  presumption  as  to,  22,  23 

TREATISE,  medical,  to  contradict  expert,  769 

TRESPASS,  included  in  larceny,  729 

TRIAL,  adjournment  to  procure  further  evidence  after  resting,  157 

continuance,  grounds  for,  160 

continuance,  evidence  to  secure,  162  et  seq. 

presence  of  accused,  160 

questioning  of  accused  by  court,  247,  352 

order  of,  156 

opening  and  closing.     See  Opening  and  Closing. 

viewing  the  premises.     See  Viewing  the  Premises. 

charging  the  jury.     See  Charging  the  Jury. 


UNSEAWORTHINESS,  of  vessel,  when  presumed,  17 

UTTERING,  forged  instrument,  776 


VALUE,  proof  of  in  prosecution  for  larceny,  736 

VARIANCE,  chap,  xx.,  167  et  seq. 

defined,  167 

effect  of,  167 

ancient  strictness  relaxed,  170 

when  material,  174 
immaterial,                                                                                169,  398,  401 


INDEX.  9  7  7 

VARIANCE,  continued.  page. 

instances  of,  163 

as  to  time,  167 

amendment  to  cure,  170 

in  Dames,  167,  171  et  seq. 

objection  must  be  taken  at  trial,  248 

VERDICT,  against  evidence  set  aside,  240,  242 

direction  of,  140,  199,  229,  233,  238,  239 

unsupported  by  evidence.  238 

separation  of  jury  before  rendition  of,  253 

affidavits  of  jurors  as  to,  206 

VESSEL,  wben  presumed  unseaworthy,  17 

VICTIM  OF  CRIME,  evidence  of  character  of,  596,  605,  765 

VIEWING  THE  PREMISES,  chap,  xxr.,  175  et  seq. 

a  statutory  right,  175 

all  parties  consenting,  175 

when  allowed,  176 

presence  of  accused,  176 

VOICE,  as  evidence  of  identity,  482 

VOLUNTARINESS,  of  confession,  489,  491,  496,  503 

VOTING,  illegal,  what  indictment  for  must  show,  885 

WEIGHT  OF  EVIDENCE,  distinguished  from  burden  of  proof,  424 

WITNESS,  defined,  275 

obligation  of  prosecution  to  call  all  witnesses  of  offense,       124,  131,  407 

willful  detention  from  trial,  219 

failure  to  call,  219 

accused  as.  224,  225,  339,  342 

as  to  intent,  452,  893 

testimony  on  preliminary  examination  357 

failure  of  accused  to  become,  219 

adversary  may  require  statement  of  proposed  testimony,  73 

Securing  Attendance  of,  chap,  xxviii.,  2§Z  et  seq. 

statutes  as  to  compelling  attendance,  271 

right  of  accused  to  compel  attendance  of,  267 

when  attendance  compelled  by  habeas  corpus,  274 

See  Subpcena. 

attorneys  or  clergymen  as,  281,  299,  314 

co-defendant  as,  519 

Competency  and  credibility,  chap,  xxix,  275  1 1  $<  q 

right  of  accused  to  be  confronted  with,  382 

not  applicable  to  documents,  51 

contempt,  265 

of  confessions,  497 

contradiction  of,  as  to  what  allowed,  370,  371 

contradiction  of  party's  own  witness,  368 

conviction  of  crime,  278,  280,  597 

credibility  of,  292,  293 

presumptions  of  credibility  of,  21 

62 


978  INDEX. 

WITNESSES,  continued. 

cross-examination  of,  importance  of, 

necessity  of  opportunity  for, 

duration  and  mode, 

scope  and  range  of, 

rule  in  Federal  courts, 

English  rule, 

in  absence  of  accused, 

of  accomplices, 

of  accused, 

when  answers  conclusive, 

on  taking  depositions, 

for  impeachment, 

as  to  imprisonment, 

best  and  secondary  evidence  on, 

as  to  memoranda, 
deaf-mutes  as, 

deceased,  testimony  on  previous  trial, 
previous  declarations  of  consistent  with  testimony, 
deposition  of.     See  Deposition. 
detective  as, 

endorsement  of  names  of  on  indictment, 
Examination  of  witnesses,  chap,  xxxi., 

order  and  extent  of,  discretionary  with  court, 

to  be  under  oath  and  in  presence  of  parties, 

confined  to  facts  within  witness'  knowledge, 

of  hostile  witness, 

leading  questions, 

assumption  of  facts  not  proved, 
disclosure  of  intended  proof, 
exclusion,  violation  of  order  of, 
explanation  of  error  by, 
expert  may  refresh  memory  from  treatise, 
expenses,  when  entitled  to, 
before  grand  jury, 
grand  juror  as, 

husband  and  wife.     See  Husband  and  Wife. 
Impeachment  of  witnesses,  chap,  xxxn., 

California  statute, 

when  effected, 

by  showing  particular  acts, 

by  cross-examination, 

by  testimony  on  preliminary  examination, 

of  accused, 

conviction  of  crime, 

of  dying  declarant, 

imprisonment, 

inconsistent  declarations, 

of  interpreter, 

of  party's  own  witness, 


PAGE. 

337 

339, 

356, 

357 

330, 

334 

.-334,  336 

,  338-341 

341 

325, 

329, 

337 
334 
517 
342 
341 

379,  381, 

382, 

384 

360, 

364, 

369 

331, 

367 
44 

102, 

103 
289 

345, 

380 

364,  366, 

374, 

378 

197, 

522 
406 

319  et 

seq. 

319 

321 

321 

330 

320, 

322, 

323 
326 
323 
71 
335 

100, 

144 
267 
403 

255. 

403, 

412 

359  el 

!  seq. 

362 

363 

359, 

369, 

375 

360, 

364, 

369 
366 

367, 

376 

278, 

280, 

597 
538 
367 

361,  366, 

370, 

373 
378 
370 

INDEX.  979 

WITNESSES,  continued.  page. 

perjury  in,  793 

indecent  forms  of  expression  not  required  of,  75 

infancy  of,  289 

intoxication  of,  287 

judge  as,  276 

jurors  as,  276 

to  prove  misconduct  of  jury,  206 

jury,  right  of,  to  disbelieve,  225 

lunacy  of,  2S6 

non-resident,  previous  testimony  of,  353 
opinions  of.     See  Expert  and  Opinion  Evidence. 
privilege  of.     See  Privilege  of  Witnesses. 

prosecuting  attorney  as,  277 

public  officer  as,  concerning  confidential  disclosures,  281 

recalling,  335 
re-examination,  scope  of,                                                         320,  335,  340 

recognizance  for  appearance,  264,  265 

refreshing  memory  by  collateral  facts,  336 

by  memoranda,  56,  104 

refusal  to  attend  or  testify,  264 
self-crimination.     See  Privilege  of  Witnesses. 

subscribing,  non-resident,  354 
testimony  of  on  former  trial,                                                   354,  380,  384 

weighing  evidence  of,  225 


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